Reported Decision : (2002) 136 A Crim R 533 New South Wales Supreme Court CITATION : Battur V Dpp & Anor [2002] NSWSC 1237 CURRENT JURISDICTION: Supreme Court FILE NUMBER(S) : SC 12943 of 2002 HEARING DATE(S) : 17 December 2002. JUDGMENT DATE : 17 December 2002 PARTIES : Munkh-Erdene Battur v DPP & Anor JUDGMENT OF : Cooper AJ at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate JUDICIAL OFFICER : COUNSEL : Mr P Lakatos for Plaintiff Mr I Bourke for Defendant SOLICITORS : Douglas Humphreys, Legal Aid Commission for Plaintiff, S.E. O'Connor for Defendant. CATCHWORDS : relief in the nature of mandamus sought - failure to exercise jurisdiction. LEGISLATION CITED : s 48E of the Justices Act CASES CITED : The King v War Pensions Entitlement Appeal Tribunal(1933)50 CLR 228. Hanna v Kearney (unreported) DECISION : Summons is dismissed.; Plaintiff (applicant) to pay the costs of 1st Defendant (respondent) - 9 -IN THE SUPREME COURTOF NEW SOUTH WALESCOMMON LAW DIVISIONCOOPER AJTUESDAY 17 DECEMBER 200212943/02 - MUNKH-ERDENE BATTUR v DPP & ANORJUDGMENT1 HIS HONOUR: This is a summons seeking relief in the nature of mandamus against a decision of the Magistrate sitting in the Local Court in Sydney. 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 he 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.2 The defendants to this summons are the Director of Public Prosecutions and the learned Magistrate. The Magistrate has submitted to any orders made by the Court except as to costs. The Director of Public Prosecutions, who has the conduct of the proceedings before the Magistrate, opposes the relief sought in this summons. 3 This matter arises from the refusal of the Magistrate to make a direction under s 48E of the Justices Act that certain prosecution witnesses be called to give oral evidence at committal proceedings in which the plaintiff is the defendant. 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. 4 There will be 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 The principles were laid down long ago by the High Court of Australia in The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228. At page 242 Rich, Dixon and McTiernan JJ:"...if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void."6 The committal proceedings in this case relate to a charge of murder which is alleged to have occurred in the early morning of 28 October 2001. A consideration of the material before the Court indicates that the events leading up to the alleged crime may be briefly and neutrally summarised thus: The accused, together with others were at his home and amongst those present was the victim. There was some form of difference of opinion between the accused and the victim at the home. A number of them, including the accused and the victim, then went to the Las Vegas bar where they continued drinking alcohol, an activity which they had started at the home.7 Whilst at the bar there was some further confrontation between the accused and the victim that attempts to patch up the dispute. It is alleged that the accused at one stage went to the toilet followed by the victim and another man and some form of fight occurred there, said to be initiated by the victim with the result that the accused ended up bleeding and with some torn clothing.8 The accused then went to his home, changed his shirt and also picked up a large kitchen knife which he then took with him. The accused and others then left the home and went to William Street near Kings Cross where they came upon the victim and other people. As to what occurred then is not quite clear, but it ended up with the accused stabbing the victim once through the heart. The victim died some time later.9 This is but a very brief summary of the events which are alleged to have occurred. The accused and his friends are all Mongolian-speaking men.10 The accused took part in a record of interview on the day of the alleged offence and that interview was translated from Mongolian to Russian and then from Russian into English. What difficulties this may cause at a subsequent trial is not for me to determine. Suffice it to say that I have taken the contents of the record of interview at its face value as, indeed, did the Magistrate. There is, of course, no other alternative available to either of us.11 In that record of interview the accused raised facts which may well give rise to issues of self defence, provocation and intoxication. Five Mongolian-speaking witnesses were interviewed. They told of incidents in the accused's home and in the Las Vegas bar but none of them appears to have seen the stabbing in William Street. Two of them claimed that they were not even in William Street but had gone home beforehand. Orders were made for their oral evidence to be taken at the committal. 12 Application was made to the learned magistrate for the evidence to be taken orally from four witnesses, namely, Vicki Swan, Lesley Lowe, Catherine Ross and Stephen Barrett. Each of these four witnesses were independent of the group of Mongolian-speaking men to whom I referred earlier.13 The statement of Ms Swan indicates that she and her two friends were walking along the northern footpath of William Street in an easterly direction. When they were near the Bayswater Car Rental shop she saw two men about ten metres in front of her whom she described generally as "oriental". She said the two men were standing toe to toe. They were facing each other. One man had a knife in his left hand and his right hand on the other man's chest and was holding the knife about chest height with the point of the blade pointing towards the other man. She described the knife and said that she only saw the two men for about five seconds because as soon as she saw the knife she told the two girls accompanying her words to the effect that there is a knife. They turned and started to walk across the road. They even started to run. After they crossed the road she looked back and saw that the taller man, who had been standing toe to toe with the man with the knife, had blood all over the front of his shirt. 14 Ms Lowe in her statement said that she was walking east along the northern kerb of William Street with Ms Swan and Ms Ross. She heard Ms Swan saying words to the effect that there is a knife. She looked up and saw about three or four people arguing outside the front of the Bayswater Car Rentals. She saw two men struggling and one of them had a big kitchen knife. She did not get a good look at the other man because she was scared after seeing the knife. She said both men were standing up facing each other. 15 The man with the knife was pushing it towards the other man's abdomen area and holding him by one of his arms. The other man had hold of his forearms, looking as though he was trying to push him away. There were more than two people present. After only a few seconds of watching the three girls grabbed each others' arms and ran back down William Street away from Kings Cross about two blocks and across to the other side of the road. About one minute after seeing the men struggling they stopped and Ms Lowe looked back towards Bayswater Car Rentals and saw a man on the ground.16 Ms Ross was with the other two. She saw about three men outside the car showroom on the corner of William Street. It was hard to say exactly how many there were but they seemed to be fighting. She saw punches thrown and she saw one man hold another in a headlock and it appeared he was punching the man he was holding. She heard Vicki say words to the effect, "He has got a knife". They then crossed William Street and she heard Vicki make a telephone call. She then saw two other men who were fighting.17 Mr Barrett, in his statement, said that at about half past four on 28 October 2001 he was walking in an easterly direction on the northern footpath of William Street. He went into a shop and as he came out he saw four men of Asian appearance. They appeared to be having a heated discussion. He followed them about twenty metres behind them. He said that the men stopped walking at the next intersection that was outside Bayswater Car Rentals. They were still arguing. The men were facing each other. One was standing near the building and another was standing next to him and they were facing down William Street. 18 The two men were facing towards the Cross with a fourth man standing next to the building and the third man nearest the street. They were standing close together so he could not see what they were doing. He looked away from them and then he looked up and saw the third man walking down William Street towards him and he noticed blood spurting out of his chest and the man was staggering around.19 Insofar as self defence may be an issue at the trial of the accused it would, of course, be relevant to know the events which occurred in William Street immediately preceding the stabbing. In written submissions handed to the learned Magistrate the solicitor for the accused said this:20 "The defendant will seek to cross-examine in relation to the following areas. 1. Quality of the observations of each witness and the opportunity for each witness to observe what was happening.2. Particulars with regard to their observations of the knife and in particular where and how it was held.3. Particulars as to what each witness says the deceased and the other two men in the immediately vicinity were doing.4. Particulars as to any physical contact that each witness may have seen.5. Particulars regarding the inconsistencies discussed above."21 The written submissions also state that the witnesses are wanted to attend "in an attempt to clarify exactly what the Crown case will be regarding the events immediately prior to the stabbing".22 It is clear from the two statements of the four witnesses whose attendance is required that they each had but a brief glimpse of what occurred immediately before the stabbing. The issue for the Magistrate to decide was whether there were substantial reasons why in the interests of justice the witnesses should attend to give oral evidence. (See s 45E sub-s 2(b) of the Justices Act.23 In considering this question the learned magistrate, as appears from page 6 of the transcript of his judgment, outlined the contents of the statements of the four subject witnesses and then continued:"Now the direction is sought for those witnesses, and the basis of the cross-examination is also outlined in the written submissions. The areas where it is sought to cross-examine. The quality of the observations of each witness, and the opportunity for each witness to observe what was happening, particulars with regard to their observations of the night, and particulars of what each witness says the deceased and the other two men in the immediate vicinity were doing, particulars of any physical contact that each witness may have seen, particulars regarding the inconsistencies discussed above."24 Here the learned magistrate was summarising the reasons advanced by the accused for the making of the orders. The judgment continues:"In the electronically recorded record of interview it is admitted, and there was no contest it seems that the defendant inflicted the fatal wound. It appears it is not in contest that the accused and the deceased were and had been in an exchange earlier in the evening, and it appears also not in contest that for whatever reason the defendant revisited his premises and obtained a knife and shortly after his leaving that unit engaged the deceased, and during that exchange the deceased was stabbed.What is obvious in my view from statements of the four witnesses for whom an order is sought is what they don't see. The situation would be, especially in view to the anticipated defences to this matter of provocation, self defence and intoxication, or a combination of any one of those three, that the evidence which is contained in those statements would display more of what they did see rather than what they didn't, that is not the case.It seems to me from the evidence that has been tendered on the question of the directions sought for these witnesses to attend that the reasons which have to be substantial in nature do not exist in relation to each of those witnesses and the application in relation to each of those four witnesses is refused."25 I would interpolate here that in fairness to the learned magistrate it must be said that he has not had the opportunity of checking the transcript of his judgment and of correcting any errors that may exist either in the transcription or in the words that he has used. I bear this in mind because it seems that what his Worship was seeking to say was that the accused wanted to cross-examine these witnesses for a particular reason but having regard to what those witnesses say they saw in their submissions, they did not really see anything and if the accused thinks that he can get them to say more than they really did say then that is something the accused is not entitled to do. 26 It is clear, therefore, that the magistrate considered the evidence. He considered the test to be applied and he thereupon made a decision which, in my view, was well within his jurisdiction.27 It can be said that the learned magistrate used the phrase that the reasons for calling witnesses to give oral evidence have to be substantial in nature rather than following the words of the statute which states that they have to be substantial reasons why in the interests of justice the witness should attend to give oral evidence.28 I think when one looks at the terms of the judgment as a whole it is quite clear that his Worship was considering the appropriate test as described in the section of the Justices Act and that he was in an extempore judgment using a shorthand phrase for the total clause set out in the Act. On behalf of the accused, it is submitted that the magistrate erred because his decision deprived the accused of the opportunity of investigating the knowledge of the witnesses as to what occurred in William Street immediately before the stabbing.29 When one looks at what the magistrate said, it is clear that he considered this very question - that is whether there were substantial reasons why in the interests of justice the witnesses should attend to give oral evidence and having considered that very question he came to a conclusion on the evidence well within his jurisdiction. It was submitted on behalf of the accused/plaintiff in this case that it is common experience that cross-examination can lead a witness to remember things or to qualify or add to or vary evidence which is contained in the statement. That may well be so but as was pointed out by Studdert J in Hanna v Kearney, an unreported decision of 28 May 1998:"The application to cross-examine requires identification and consideration of the objective of the cross-examiner and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defendants would not constitute substantial reasons. It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks." 30 For all of these reasons I am satisfied that the learned magistrate clearly considered the matters he was required to consider and made a decision based upon them. Accordingly, the summons is dismissed.The formal orders are: 31 (1) The summons is dismissed.(2) I order the plaintiff to pay the costs of the first defendant.********** Last Modified: 24/12/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.