Micallef v DPP & Anor [2001] NSWSC 1172

New South Wales Supreme Court

CITATION : Micallef v DPP & Anor [2001] NSWSC 1172 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13757/01 HEARING DATE(S) : 12 December, 2001 JUDGMENT DATE : 17 December 2001

Alan George Micallef - Plaintiff PARTIES : Director of Public Prosecutions - 1st defendant Michael Price - 2nd defendant JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT M Price LCM JUDICIAL OFFICER :

COUNSEL : R Finlayson - plaintiff SOLICITORS : Solicitor for Public Prosecutions - 1st defendant I V Knight - 2nd defendant CATCHWORDS : CRIMINAL LAW - committal proceedings - application for attendance of a witness under s48E(2)(b) Justices Act - whether magistrate applied correct test LEGISLATION CITED : Justices Act, 1902 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 Hanna v Kearney (Studdert J unreported 28.5.98) CASES CITED : R v Basha (1989) 39 ACrim R 337 Dawson v DPP [1999] NSWSC 1147 Acuthan v Coates (1986) 6 NSWLR 472 DECISION : See para 15

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Monday 17 December 2001 13757/2001 – Alan George Micallef v Director of Public Prosecutions & Anor

JUDGMENT 1 HIDDEN J: The plaintiff, Alan George Micallef, is to face committal proceedings at the Burwood Local Court in respect of a charge of armed robbery with wounding. He is also charged with a number of related offences, which I need not mention. The first defendant, the Director of Public Prosecutions, has the conduct of the prosecution. On 27 November last the plaintiff applied, under s48E(2)(b) of the Justices Act, for a direction requiring the attendance at those proceedings of one of the prosecution witnesses. By the terms of that provision, it was necessary for the plaintiff to show that there were "substantial reasons why, in the interests of justice, the witness should attend to give oral evidence". The second defendant, a magistrate, refused the application. 2 In this Court, the plaintiff seeks a declaration that his Worship erred in rejecting the application and an order that he reconsider the matter according to law. As is the usual practice, the magistrate has entered a submitting appearance. 3 The robbery is alleged to have been perpetrated by the plaintiff and a man named Vincent in the car park of a pharmacy at Chester Hill on the morning of 17 April 2001. It is the prosecution case that both men were armed with handguns and that, in the course of the robbery, the victim was shot in the leg. The robbers were observed to leave the scene in a van which had been stolen. 4 There was no identification evidence. However, DNA was detected on a baseball cap found at the scene. It proved to be the DNA of two persons but the major component was consistent with that of the plaintiff. About ten days later police searched a house at Mount Pritchard where, it is said, the plaintiff was living. A number of firearms were located, including a semi-automatic pistol which could be linked ballistically to the shooting of the victim of the robbery. There were also found documents belonging to the owner of the stolen van. 5 Statements were provided to the police by Ms Danielle Bonello, the plaintiff's girlfriend, and it is she who was the subject of the s48E application. She told police that she had been living at the Mount Pritchard home with the plaintiff and that no one else lived there. She told the police officers conducting the search that there were firearms belonging to the plaintiff in the house. In particular, she said that shortly before the search the plaintiff had concealed two handguns which had been in a plastic bag in the lounge room. It was one of those, as I understand it, which was able to be linked to the robbery. She also identified the baseball cap found at the scene as the plaintiff's. She stated that on the day of the robbery the plaintiff and Mr Vincent came to the house and the plaintiff said, "We done a robbery, a gun went off …". 6 For the purpose of the application in the Local Court, the plaintiff's solicitor, Mr Finlayson, provided written submissions. It seems that Ms Bonello was also a client of his, although in unrelated proceedings. The written submissions contained the following assertions: Several months after the defendant's arrest Ms Bonello advised me that the statements she had made to the police concerning the defendant were not correct and that she had only made such statements after she had been coerced and threatened by the police. Ms Bonello advised that if called to give evidence she would resile from her previous statements. 7 No evidence to that effect, from Ms Bonello or Mr Finlayson, was tendered. However, it appears that the prosecutor in the Local Court was content that the matter proceed in that informal way, although she pointed out in her written submissions that Ms Bonello had not provided any inconsistent statement to the police and, indeed, had not been able to be located so that the matters raised by Mr Finlayson could be canvassed with her. 8 In the course of his reasons for rejecting the application, the learned magistrate said: There is at this stage no document, no material, such (as) would indicate there is a potential, partial or total recantation in relation to either identification and or conversations. Essentially then the substantial reasons in the interest of justice would be an exercise as to whether the witness can offer an assurance she will live up to her evidence when called or alternatively, is she likely to modify any of her evidence. 9 His Worship went on to observe that the prosecution case was not restricted to Ms Bonello's evidence and that the other material available to the prosecution represented "a strong case". He concluded: This Court cannot be satisfied that there are substantial reasons in the interest of justice for the direction to require for cross-examination the nominated witness, essentially to determine if she has had a change of heart since making her statements or to explore if any impropriety may have occurred in the taking of her statements … 10 With respect, these reasons do not appear to me to address the question which his Worship had to determine. The first passage quoted above suggests that his Worship was influenced by the fact that there was no evidence, particularly from Ms Bonello herself, to suggest that she might resile from the account she had given to the police. That is so, but there was before his Worship the statement of a solicitor that she had said as much to him. Although not on oath, Mr Finlayson's statement in the written submissions was unchallenged and, clearly, worthy of acceptance. On the face of it, it raised a serious question about the reliability of Ms Bonello's account to the police and pointed to the desirability of that account being tested in cross-examination. 11 His Worship then appears to have disposed of the application upon the basis that Ms Bonello's evidence was not essential to the prosecution case and there was sufficient evidence against the plaintiff in the other material. Section 48E(2)(b) of the Justices Act was examined by the Court of Appeal in Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618. In that case (at 626-7) the Court quoted with approval a number of observations made about the provision by Studdert J in Hanna v Kearney (Studdert J, unreported, 28 May 1998). One of those observations was that it "would be wrong to limit 'substantial reasons' to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application". 12 What his Worship was called upon to do was to assess the significance of Ms Bonello's evidence and, in the light of what he had been informed by Mr Finlayson, to determine whether the interests of justice required her attendance for the purpose of cross-examination. The availability of other evidence tending to implicate the plaintiff, however persuasive it might be standing alone, was not determinative of that question. On the face of it, Ms Bonello's evidence is of importance in the prosecution case and the proposition that there were substantial reasons, within the meaning of the subsection, for her attendance was clearly arguable. In my view, there was a constructive failure on the part of his Worship to exercise the jurisdiction entrusted to him: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P at 482. 13 Accordingly, prima facie, the plaintiff is entitled to the relief which he seeks. However, those remedies are discretionary and the question remains whether this Court should decline to intervene. Mr Vincent has already been committed for trial and his trial is listed for 14 January next. The Crown wishes to proceed with the trial of both men on that date and, in the ordinary course, it is entirely appropriate that they be tried jointly. Ms Langley, for the Director of Public Prosecutions in this Court, submitted that the plaintiff is likely to be committed for trial on the evidence other than that of Ms Bonello, and that justice would be done if he had the opportunity at trial to examine her in the absence of the jury in accordance with the practice sanctioned in R v Basha (1989) 39 ACrim R 337. However, I respectfully agree with the observation of Hulme J in Dawson v DPP [1999] NSWSC 1147 (at para 25) that the "Basha Inquiry" is not "a substitute for the proper conduct of committal proceedings". True it is that there is a significant circumstantial case against the plaintiff but I am not prepared to predict that, absent the evidence of Ms Bonello, he would necessarily be committed for trial. 14 In any event, the committal proceedings are listed for hearing later this week. It may be that the plaintiff's s48E application could be reconsidered expeditiously, so that the proceedings could come to finality and, if committed for trial, the plaintiff could be put on trial with Mr Vincent in mid January. I appreciate that that timetable may be difficult to meet, particularly as it may be necessary for Mr Finlayson to withdraw from the matter. 15 I see no utility in making the declaration which the plaintiff seeks, as I have made my view clear in these reasons. However, I order that the matter be remitted to the learned magistrate to be determined according to law. If necessary, I shall hear the parties on costs. **********