McKirdy v McCosker & Anor [2002] NSWSC 197

Reported Decision : 127 A Crim R 217

New South Wales Supreme Court

CITATION : McKirdy v McCosker & Anor [2002] NSWSC 197 FILE NUMBER(S) : SC 12392/01 HEARING DATE(S) : 28/02/02 JUDGMENT DATE : 8 March 2002

PARTIES : Anthony Daniel McKirdy v Shaun McCosker & Anor JUDGMENT OF : Howie J at 1

COUNSEL : Mr C. Moschoudis - Plaintiff Mr P. Lakatos - 2nd Defendant SOLICITORS : Clayton Cross, Solicitors - Plaintiff S.E. O'Connor - 2nd Defendant CATCHWORDS : Magistrates - Practice and Procedure - committal proceedings - cross-examination of witnesses - whether substantial reasons exist for witnesses to attend LEGISLATION CITED : Justices Act 1902 - ss 41(6), 48E Criminal Procedure Act 1986 - s 20 Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 CASES CITED : Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 Hanna v Kearney (Studdert J 28 May 1998, unreported) DECISION : The orders are that the Magistrate is to consider the application to call Ms Clayton and Ms Slee in accordance with the law. The second defendant is to pay the plaintiff's costs of this application.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 8 MARCH 2002

12392/01 Anthony Daniel McKIRDY v Shaun McCOSKER & Anor

JUDGMENT

1 HOWIE J: This is a summons seeking relief in the nature of mandamus against a decision of a Magistrate sitting in the Glen Innes Local Court. The summons also seeks declaratory relief but there seems to me to be no purpose in a declaration being made. Either the plaintiff will make out his complaint that the Magistrate actually or constructively failed to exercise his jurisdiction, in which case the Magistrate will be ordered to exercise his jurisdiction according to law, or the summons will be dismissed. A declaration will not be made if it has no utility and I can see none in the present case. Mr Moschoudis, who appeared for the plaintiff ultimately conceded as much. 2 As is usual in a case of this nature, the Magistrate has submitted to any orders made by the Court except as to costs. The second defendant, the Director of Public Prosecutions, who has the conduct of the proceedings before the Magistrate, opposed the relief sought in the summons. 3 This matter arises from the refusal of the Magistrate to make a direction under s 48E of the Justices Act 1902 that prosecution witnesses be called to give oral evidence at committal proceedings in which the plaintiff is the defendant. The plaintiff sought such a direction for the purposes of cross-examining all the prosecution witnesses and, although the prosecutor appears to have initially supported the application in respect of some witnesses, that support was withdrawn prior to the Magistrate making a final determination on the application. 4 The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all; Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418. There will be a constructive failure to exercise jurisdiction under the section if the Magistrate has applied the wrong test in determining whether a witness should be called. 5 Section 48E is relevantly as follows: