New South Wales Supreme Court CITATION : POLIAKOV v MAGISTRATE ANDREW GEORGE & ANOR [2009] NSWSC 1133 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 30/09/2009, 22/10/2009 JUDGMENT DATE : 22 October 2009 JUDGMENT OF : Buddin J EX TEMPORE JUDGMENT DATE : 22 October 2009 1 The decision of his Honour Magistrate Andrew George made on 30 June 2009 declining to direct that Hussein Farhat and Detective Inspector Steven Patton attend to give oral evidence at the hearing of the committal proceedings is quashed. DECISION : 2 The proceedings are remitted to the Local Court to be heard and determined according to law. 3 Any order staying the committal proceedings until the decision of this Court is dissolved. 4 The parties have liberty to apply on the question of costs within 7 days. CATCHWORDS : Committal proceedings - application for attendance of witnesses for cross-examination - Whether adequate reasons provided by Magistrate for declining application - relevance of Basha enquiry Criminal Procedure Act 1986 (NSW) LEGISLATION CITED : Supreme Court Act 1970 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) CATEGORY : Principal judgment Abdel-Hady v Magistrate Freund & Anor (2007) 177 A Crim R 517 Acuthan v Coates (1986) 6 NSWLR 472 B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297 Chapman and Another v Gentle and Others (1987) 28 A Crim R 29 Director of Public Prosecutions v O'Conner (2006) 181 A Crim R 294 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 DPP v Rainibogi [2003] NSWSC 274 JW v Director of Public Prosecutions [1999] NSWSC 1244 CASES CITED : McKirdy v McCosker (2002) 127 A Crim R 217 Murphy v Director of Public Prosecutions & Anor [2006] NSWSC 965 O'Hare v DPP [2000] NSWSC 430 Quami v DPP (NSW) and Anor (2008) 186 A Crim R 72 R v Kennedy (1997) 94 A Crim R 341 R v Losurdo (1998) 103 A Crim R 162 Sasterawan v Morris [ 2008] NSWCA 70 Sim v Magistrate Corbett & Anor [2006] NSWSC 665 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Steele v DPP (NSW) and Anor (2007) 186 A Crim R 1 Igor Poliakov (Plaintiff) PARTIES : Magistrate Andrew George (First Defendant) Director of Public Prosecutions (NSW) (Second Defendant) FILE NUMBER(S) : SC 13744/09 COUNSEL : Dr B Glennon (Plaintiff) M Cinque (Second Defendant) DH Cohen (Plaintiff) SOLICITORS : IV Knight (First Defendant) (submitting) SC Kavanagh (Solicitor for Public Prosecutions) (Second Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : Not available LOWER COURT JUDICIAL OFFICER : Magistrate Andrew George LOWER COURT DATE OF DECISION : 30/06/2009 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J 22 October 2009 13744/2009 – IGOR POLIAKOV v MAGISTRATE ANDREW GEORGE & ANOR JUDGMENT 1 HIS HONOUR: Introduction By amended summons dated 24 September 2009, Igor Poliakov (the plaintiff) seeks orders in relation to a decision made on 30 June 2009 in the Local Court by a Magistrate (the first defendant). The amended summons is supported by an affidavit sworn on 12 August 2009 by the plaintiff's solicitor. At issue is the first defendant's decision declining to give a direction, pursuant to s 91 of the Criminal Procedure Act 1986 (NSW), for the attendance of two persons, named Hussein Farhat and Detective Inspector Steven Patton, as witnesses at the committal proceedings brought against the plaintiff by the Director of Public Prosecutions (the second defendant). 2 The plaintiff seeks an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the first defendant's decision and an order remitting the matter to the Local Court to be determined according to law. The plaintiff also seeks relief pursuant to ss 53 and 55 of the Crimes (Appeal and Review) Act 2001 (NSW). For that purpose the plaintiff sought leave to amend the summons and also sought an extension of time within which to apply for leave. I granted leave since Ms Cinque, who appeared on behalf of the second defendant, candidly acknowledged that no prejudice was occasioned to her client's position by my doing so. Indeed counsel accepted the opportunity to file supplementary written submissions. The second defendant opposed the making of the orders sought by the plaintiff, whilst the first defendant submitted to the orders of the Court. The proceedings at first instance 3 Section 91 of the Criminal Procedure Act relevantly provides: (1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor. (2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. (3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. 4 The plaintiff had originally sought the attendance of two other witnesses. However, the application in respect of those other two witnesses was not pressed before the Magistrate and accordingly that is not an issue that requires any further consideration. 5 A document, entitled Fact Sheet, was tendered before the Magistrate. From that document, which is 18 pages in length, I was able to glean some indication as to the nature of the case which the second defendant seeks to establish against the plaintiff. I was also furnished with an affidavit sworn by the second defendant's instructing solicitor which provides some other background material, including the charge sheets which relate to the offences alleged against the plaintiff, and further material which illuminates the scope of the evidence which it seeks to adduce against him. 6 In early 2007 a police investigation commenced into the alleged involvement of the plaintiff, and a number of other persons, in the large scale supply of prohibited drugs. The activities of the plaintiff and those other persons were subjected to both physical and electronic surveillance. On 6 December 2007 the plaintiff was arrested and charged with the supply of a quantity of cocaine. He also had $10,850 in cash in his possession at the time. As I understand the situation, those matters still await resolution in the local court. Subsequently the plaintiff was charged with seven further offences of supplying prohibited drugs which are the subject of the present application. The first charge relates to the supply on 15 May 2007 of a large commercial quantity of methylamphetamine (1 kilogram). The second charge relates to the supply on 13 May 2007 of an indictable quantity of methylamphetamine (56 grams) whilst the third relates to the supply on 11 May 2007 of an indictable quantity of MDMA (100 tablets). The fourth charge relates to the supply on 13 May 2007 of a commercial quantity of cocaine (280 grams). The fifth charge relates to an offer to supply on 6 July 2007 a large commercial quantity of cocaine (one kilogram). The sixth charge relates to the supply on 13 May 2007 of an unspecified quantity of amphetamine. The final charge relates to the supply on 22 November 2007 of a large commercial quantity of MDMA. The supply of a large commercial quantity of any of these drugs attracts a maximum penalty of life imprisonment. Should he be convicted of even some of the charges brought against him, it is inevitable that a very lengthy custodial sentence awaits the plaintiff. 7 Hussein Farhat was arrested on 23 January 2008 and charged with various offences arising from his involvement in drug trafficking. I was informed that he has pleaded guilty to two counts of supplying a large commercial quantity of MDMA, as well as various other much less serious offences, and that he is due to be sentenced in the District Court on 6 November in respect of those matters. Those offences are not related to the matters in respect of which the plaintiff has been charged. In a 77 page ERISP, conducted by police with him on the day of his arrest, Mr Farhat effectively denied any involvement in drug related activities. He was asked about his knowledge of various persons, including the plaintiff, and denied knowing anything that may have implicated any of them in any criminal misconduct. 8 On 15 October 2008, at which point he had been in custody for some time, Mr Farhat was interviewed by officers of the NSW Crime Commission and New South Wales Police. He furnished them with a 16 page witness statement after an inducement was held out to him by the authorities which was to the effect that what he told them would not be used against him in any criminal proceedings. On that occasion he nominated various persons as having been involved in drug dealing activities. He referred, in general terms in that context to the plaintiff, but the details of the activities which he attributed to him are both limited and imprecise. He also stated that whenever he spoke on the phone to any member of a group of four nominated persons (a group which included the plaintiff) they "would use code when speaking about drugs". He listed about 10 examples of words which he said were used as code. He then explained what he said was the actual meaning of those words. 9 On 22 December 2008 Mr Farhat provided a further induced statement in relation to a number of lawfully intercepted telephone calls. He identified the voices of the participants as belonging to himself and another person, whom he named as Patrick Singh. Mr Farhat stated that during those phone calls there were constant references to drug dealing activities. Although the plaintiff did not participate in any of the calls, Mr Farhat nevertheless indicated that he was somehow involved in those activities. The second defendant does not suggest that the contents of those calls relate to any of the individual charges against the plaintiff. They are said however to provide some context as to the nature of the witness' relationship with the plaintiff and how, in turn, he acquired his knowledge of the latter's activities. 10 On 6 April 2009 Mr Farhat provided a third induced statement in which his attention was directed to a large number of other lawfully intercepted telephone calls. This is said to be of direct relevance to the case against the plaintiff because Mr Farhat maintains that those calls were between the plaintiff and Mr Singh. Although Mr Farhat is not a party to those calls, he nevertheless set out in his statement his understanding as to what those calls were about. According to him those calls related to drug dealing activities, although he said that coded expressions were once again employed. Mr Farhat did however concede that "even though these are general codes that they use, sometimes even they get confused with the codes they are using and get them mixed up". He then went on to admit that he too had got them "mixed up" in his statement of 15 October 2008. It is also to be observed that a number of the conversations took place on dates other than those which appear in the charge sheets. It is not clear upon what basis they are said to be admissible but that is not an issue with which I am presently concerned. 11 I was informed that Mr Singh is to stand trial in Adelaide in April 2010 in relation to various drug trafficking offences. Those offences, which are alleged to have been committed in South Australia, were detected as a result of investigations conducted into his activities by NSW police. 12 Detective Inspector Patton provided a statement dated 28 May 2009. The second defendant seeks to rely upon him as an 'ad hoc' expert on the question of the use of codes in the drug milieu. His expertise is said to extend to topics such as the prices of various quantities and types of prohibited drugs. His evidence relates to the conversations between the plaintiff and Mr Singh to which I have just referred and it is agreed that what he says is generally consistent with Mr Farhat's interpretation of the words contained in them. 13 The plaintiff was represented by counsel when the application was made before the Magistrate. Written submissions, a copy of which had been served upon the second defendant, were provided to the Magistrate. The topics upon which the plaintiff sought to cross-examine Mr Farhat may be summarised as follows: (a) the reasons why he implicated the plaintiff in criminal activities having not done so in his initial statement; (b) the circumstances in which his induced statements were created; (c) the extent to which he had assistance in making those statements, including any material to which he may have had access or persons to whom he may have spoken; (d) the extent of his own involvement in drug dealing activities; (e) the extent to which he alleged that the plaintiff was involved in drug dealing activities; (f) the basis of his understanding as to the meaning of the words allegedly used in code in the intercepted phone calls; and. (g) his capacity to identify the voices in the intercepted phone calls. 14 In respect of Detective Inspector Patton, it was indicated that the plaintiff wished to cross-examine him upon the material which he had had available to him in compiling his statement including any discussions that he may have had with Mr Farhat and/or his associates concerning the intercepted phone calls. It was specifically indicated that the plaintiff wished to explore whether there had been any collusion between Mr Farhat and Detective Inspector Patton. 15 The written submissions also provided some information about the context in which the application was made, together with an exposition of the principles (with reference to the relevant authorities) which govern s 91 applications. Regrettably, despite the fact that an order had been made requiring the second defendant to respond to the plaintiff's submissions, it is apparent that the Magistrate did not have the benefit of any such submissions. At the hearing of the application, the representative of the second defendant made some short oral submissions which ran to less than a page of transcript. However, no reference was made in those submissions to any of the relevant principles or to how they may be applied to the facts of the present case. It is abundantly clear that the Magistrate did not receive the assistance from the second defendant's representative to which his Honour was entitled: see generally McKirdy v McCosker (2002) 127 A Crim R 217. The Magistrate's decision 16 The Magistrate, having taken a short adjournment to read the material to which I have referred, then delivered the following ex-tempore judgment: The defendant's application is in respect of four witnesses, an application under section 91. The application itself is in my view vague. The fact that Farhat has made more than one statement, would hardly be something unusual in the conduct of criminal prosecutions, and it's one of the more tedious and regular applications by defendants that somehow or other the inconsistency of those statements should produce absolute conclusions. It is never so clear but it is also not unusual. The question about codes, whether it be from an examination of Farhat and an examination of Detective Inspector Patton, would seem to be something that the prosecution has to prove in its case. It would not seem to me that any further examination of the detail, the whys and wherefores of how these words were settled upon is going to lead anywhere, if it doesn't leap out of the case presented by the prosecution to a jury, then the prosecution may be that such much weaker because of that, but I don't think that the situation is either unusual nor do I think it amounts to a substantial reason to call that witness. The general tenor of this application seems to me to be more of a fishing exhibition, it lacks specificity in respect of both Farhat and in respect of the police officer Patton. IN THE CIRCUMSTANCES I AM REFUSING THE APPLICATION. The grounds of appeal 17 The plaintiff relies upon the following grounds of appeal: (a) The learned Magistrate erred at law in not determining the matter according to law and gave little or inadequate reasons for his decision. (b) The learned Magistrate erred at law in not giving reasons to disclose the process of his reasoning as to how he came to his findings that there were no substantial reasons. (c) The learned Magistrate erred at law in not finding as a substantial reason that both witnesses Hussein Farhat and Inspector Steven Patton were necessary witnesses to be called at a committal hearing so as to avoid the necessity for a Basha type inquiry at any subsequent trial of the applicant and in so doing, the learned magistrate failed to take into consideration a relevant consideration and erred at law. It may be inferred that by not giving any reasons to support his decision, the learned magistrate did not regard the necessity of a Basha type inquiry as a relevant consideration in the exercise of his jurisdiction. (d) The learned Magistrate erred at law in not addressing the issues raised in the submissions of the applicant. (e) The learned Magistrate erred at law in not disclosing the facts upon which he relied upon (sic) to reach his decision. (f) The learned Magistrate erred at law in denying the applicant procedural fairness in not disclosing to the applicant before his finding that the application was "vague", thus denying the applicant the right to be heard on the matter. g) The learned Magistrate erred at law in denying the applicant procedural fairness in not disclosing to the applicant before his finding why he considered the application as "more of a fishing expedition", thus denying the applicant the right to be heard on the matter. (h) The learned Magistrate erred at law and took into account an irrelevant consideration in finding that the application before him was "more of a fishing expedition". The learned magistrate gave no or inadequate reasons why he considered that the application before him was more of a "fishing expedition". (i) The applicant relies upon the grounds in paragraphs, (a) to (h) above to support his application under s 53(3) of the Crimes (Appeal and Review) Act, 2001. It is readily apparent that there is a considerable overlap between a number of the grounds Nature of the Court's jurisdiction 18 I have already referred to the relief which the plaintiff seeks. In approaching the matter, I have had due regard to the observations of McClellan CJ in CL in Steele v DPP (NSW) and Anor (2007) 186 A Crim R 1 in which his Honour said: The plaintiff claims relief by way of an appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 NSW and also seeks prerogative relief. Section 53(3)(a) provides for an appeal to this Court by a person against whom "an order has been made by a magistrate in relation to the person in any committal proceedings." However, such appeal is only available with leave and is confined to a question of law alone. Prerogative relief is also available in relation to committal proceedings. However, in a number of decisions this Court has been careful to confine the circumstances in which relief may be granted. If, as is the position in the present case, the committal proceedings have not come to a conclusion, the court is being asked to intervene at an early stage of criminal proceedings when no decision which might ultimately affect an accused person has been made. Even if the magistrate determined that a committal is appropriate, the Director of Public Prosecutions must find a bill. If that occurs there will be further opportunity for the trial Judge to remedy any injustice which is alleged to have occurred and which may impact upon a fair trial. I recently considered these difficulties in Nanevski v Haskett [2006] NSWSC 1114. In my judgment I said: As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person "against whom ... (a) an order has been made by a magistrate in relation to the person in any committal proceedings" may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 ACrimR 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions (NSW) v Scheibel (2004) 145 ACrimR 576 at 584-585. An appeal with leave is only available "on a ground that involves a question of law alone." The present case involves a challenge to the exercise by the magistrate of a discretion provided in her by the statute. It is submitted that the discretion miscarried. A number of reasons for that submission are advanced which not confined to allegations that the magistrate erred in law. In effect the decision is sought to be reviewed on its merits. In these circumstances leave must be refused to bring an appeal pursuant to the Act. I admit to some diffidence in otherwise considering the plaintiff's application. When the legislature has provided a statutory but limited right of appeal in relation to committal proceedings in my opinion this Court should be reluctant to utilise its prerogative powers to intervene. The fact that such powers are available cannot be doubted (Sankey v Whitlam [1977] 1 NSWLR 333 , Waterhouse v Gilmore (1988) 12 NSWLR 270 ). The position was comprehensively considered by O'Keefe J in O'Hare v Director of Public Prosecutions (NSW) [2000] NSWSC 430 at [54] ff where, although the jurisdiction of this Court to make orders in the nature of mandamus and grant declarations was confirmed, his Honour was careful to emphasise the significance of the discretionary considerations which arise. His Honour at [63] referred to the decision of Street CJ in Eq in Bacon v Rose [1972] 2 NSWLR 793 : In Bacon v Rose Street CJ in Eq (as he then was) considered the declaratory power of the court in relation to committal proceedings before a Magistrate in cases in which the prerogative writs of prohibition and certiorari do not apply, as was determined to be the situation in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 (per Jordan CJ). Street CJ in Eq held (at 796) that: There is no basis upon which it can be successfully contended that the declaration presently sought lies beyond the jurisdiction of the Court. The important question is to determine whether, as a matter of discretion, the plaintiff should be entitled to seek an exercise of the declaratory jurisdiction in circumstances such as the present. and (at 798): It does not follow from what I have stated that declaratory relief is available as a means of appeal, either before, during, or after committal proceedings. I am concerned only with an assertion by the plaintiff that the proceedings have been instituted in the face of an express statutory pre-condition. If this claim be made out by the plaintiff then there is every reason, in the pursuit of the due and orderly administration of law, for this court to assent to its process being invoked to expose the disregard of the statutory pre-condition, and to declare the absence of justification for the plaintiff being exposed to committal proceedings. O'Keefe J concluded his discussion of the question of jurisdiction in the following terms: The effect of these cases is to emphasise that there is jurisdiction to intervene by way of declaratory relief in committal proceedings, but that in the exercise of the Court's discretion it will be done only in an appropriate case. This view was confirmed in Connor v Sankey [1976] 2 NSWLR 570 . Street CJ said (at 592): The declaratory jurisdiction of this court is not hedged about with the restrictions nor clouded by the complications that attach to the remedy by way of prohibition. and (at 594): If the plaintiffs are able to establish that the information and summonses allege offences not known to the law, I am of the view ... that the court has jurisdiction to grant declaratory relief accordingly and that it should exercise such jurisdiction. Similarly I am of the view that if the jurisdiction of the Justice of the Peace and the presiding Magistrate was not duly and properly invoked, then once again this court both has and should exercise its declaratory jurisdiction in favour of the plaintiffs. Moffitt P, whilst accepting the wide jurisdiction conferred on the court to intervene by way of declaration in the proceedings of an inferior tribunal said (at 622): It would not in my view, be a proper exercise of (the) admittedly wide power for this court to intervene in proceedings before another tribunal by declaring that such tribunal should do that which this court has no power to order, or which, in the exercise of a judicial discretion, it will decline to order. and (at 623): The reason it will decline to do so is because exclusive jurisdiction upon the matter is conferred by statute upon the tribunal in question. In this setting, there is no basis for the exercise of a judicial discretion to grant declaratory relief to usurp the authority or jurisdiction of the tribunal in question by declaring what order it should make. It would be a negative and somewhat futile exercise of power by a Superior Court to decline to make an effective order to ensure what should be done, yet declare what should be done, in the hope it will be done. The mere statement of these considerations demonstrate that, if the prerogative relief sought by the plaintiff will not be given, the declaratory orders sought by them should not be made. The importance of discretionary issues in the present context was also emphasised by Shaw J in Tez v Longley (2004) 142 ACrimR 122 where his Honour said: The plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970 NSW. The jurisdiction of this court to order declaratory relief, in respect of a Magistrate's decision in a committal proceeding, is a matter of discretion, to be determined in the circumstances of each case: Bacon v Rose [1972] 2 NSWLR 793 at 796 per Street CJ in Eq. However, the High Court has held that the grant of declaratory relief in relation to committal proceedings should only occur where there are most exceptional or special reasons so to avoid fragmentation of the criminal process: Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 82 per Mason J. The court, therefore, has jurisdiction to intervene in the proceedings of an inferior tribunal, such as is the case here, but should not do so lightly. Order in the nature of mandamus The court is empowered to grant relief in the nature of mandamus pursuant to s 69(1)(c) of the Supreme Court Act 1970 NSW. However, the court will only do so where there has been a constructive failure, on the part of the Magistrate, to exercise the Court's jurisdiction. The correctness, or otherwise, of the Magistrate's refusal of the accused's application is not the question to be considered in determining whether an order in the nature of mandamus is called for: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 243. The real question is whether or not the decision was a correct exercise of the tribunal's power. The decision of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 eloquently expresses this notion at 420: ... the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test," or to "misconceive its duty," or "not to apply itself to the question which the law prescribes," or "to misunderstand the nature of the opinion which it is to form," in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. [Citations omitted.] In circumstances where I, or another judicial officer may form a different opinion to the learned Magistrate in respect of the application, on the same facts, this will not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law: McKirdy v McCosker (2002) 127 ACrimR 217 at [4] per Howie J: 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. The Court is, therefore, required to make a finding of jurisdictional error before remitting the matter to the Magistrate for re-consideration in accordance with the law. (paras 37-39). 19 See also Quami v DPP (NSW) and Anor (2008) 186 A Crim R 72. 20 Because of the matters raised by his Honour, I have decided, with the concurrence of the parties, that it is appropriate to determine this matter without considering the question of the relief which may be available under the Crimes (Local Court and Review) Act 2001. Moreover, in dealing with the orders which the plaintiff seeks by way of prerogative relief, I have borne steadily in mind the principles which emerge from the authorities cited in Steele (supra) and the restraint which is to be exercised in granting such relief. The relevant principles 21 The scope of the test which is identified in s 91(3), and its statutory predecessors, has been the subject of considerable judicial attention. In O'Hare v DPP [2000] NSWSC 430, O'Keefe J held that the phrase "special reasons why in the interests of justice" which now appears in s 93 of the Act "must be understood as a composite phrase. The special reasons must be directed towards the purpose of achieving the interests of justice" (at para 17). A similar construction should be applied to the phrase which appears in s 91(3). 22 In Chapman and another v Gentle and others (1987) 28 A Crim R 29, Yeldham J held, albeit in a slightly different context, that "the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial" (at p 32). In Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618, the Court was called upon to consider an appeal from the decision of Hidden J in R v Losurdo (1998) 103 A Crim R 162. After reviewing a number of authorities the Court said: These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word "substantial" by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to The Macquarie Dictionary referred to by his Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary (1989). But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them. (at 622-3) 23 The court continued: The Attorney-General referred to the major features of the Justices Amendment (Committals) Bill 1996 (NSW) and continued (at pp 4671-4672): " Concern has been expressed by opponents of the bill in its present form that it will bring about a blanket prohibition on cross-examination. This has never been the Government's intention; nor does the Government believe that such a result would have eventuated. However, for more abundant caution, to ensure that such a result does not occur, the Government will move that the requirement be for `substantial' rather than `special' reasons to be demonstrated in relation to witnesses other than victims of violence. As I have indicated, the phrase `substantial reasons' is intended to bring about a less stringent test than that which has been developed under the current section 48EA. The precise scope of the phrase will of course be subject to judicial interpretation. It would be unhelpful to attempt to exhaustively define it in the bill. It is envisaged however that if cross-examination would be likely to result in discharge of the defendant pursuant to section 41(2) or 41(6) that this would amount to `substantial reasons ... in the interests of justice'. Similarly, the phrase would be expected to apply where there is a likelihood that cross-examination would demonstrate grounds for a no-bill application. Another situation where `substantial reasons' may be held to apply would arise where it appears that cross-examination is likely to substantially undermine the credit of a significant witness. On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case `the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial. While it is possible to give some examples, it is not possible to be exhaustive. Certainly, it is not intended by giving these examples to limit the interpretation which magistrates may give the phrase `substantial reasons ... in the interests of justice'. The process of judicial interpretation will allow the meaning of the phrase to be developed appropriately as need arises in a way which simply cannot be comprehensively expressed in a piece of legislation." … Earlier we referred to the judgment of Studdert J in Hanna v Kearney (unreported, Supreme Court, NSW 28 May 1998). Towards the end of his judgment, his Honour said (at pp 11-12): "It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s 48E: 1 Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. 2 There can be no rigid or exhaustive definition of what constitutes `substantial reasons' and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. 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 defence would not constitute `substantial reasons'. It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks. 3 In 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. Equally it would be wrong to limit `substantial reasons' to situations where cross-examination is likely to substantially undermine the credit of an important witness. `Substantial reasons' may well be found elsewhere. 4 On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive. 5 `Substantial reason' may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (1992) 59 SASR 404 at 411; 65 ACrimR 563 at 569-570. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases." There was no application for leave to appeal against the judgment of Studdert J. Counsel for the claimant here was asked whether he wished to make any submission to the effect that anything that Studdert J had said in the passage quoted was erroneous or in need of correction. Counsel said that he accepted what Studdert J had said as correct. With respect, we would also indicate our agreement with it. (625-627) (emphasis added) 24 The complaint made in Losurdo concerned the following passage in the primary judge's reasons: It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of a discretion by a trial judge, even though the magistrate has no such discretion: particularly in a case, such as this, where the rejection of the evidence at trial may be fatal to the Crown case. In this regard it should not be forgotten that a properly conducted committal can benefit the prosecution as much as the defence . Cross- examination about a matter giving rise to discretionary rejection might elicit material in support of an objection and assist to bring the relevant issues into focus. Equally, it might establish that there is no foundation for such an objection." (at 623-4) (emphasis added) 25 In concluding that the primary judge had not fallen into error, the Court said: The question here is whether his Honour was correct in what he said in the context of determining whether or not there were substantial reasons for requiring the prosecution witnesses to attend the committal proceedings. If the cross-examination is excluded, there will be no airing of the problem until the voir dire examinations take place at the trial. This seems to us to be undesirable because it leaves the accused uncertain of the evidence which may be led against him and it leaves the prosecution without any forewarning of the likely criticisms of that evidence which may be available to the defence. There is nothing to suggest that the various dicta about the purposes of committal proceedings to which reference has been made have been overtaken by the legislation. Indeed, what the Attorney-General said in the course of his Second Reading Speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of committal proceedings that there would rarely be more than a "paper committal". This is borne out, not only by his general statements, but by some of the examples which he gave in the course of his remarks. (at 631) 26 In Sim v Magistrate Corbett & Anor [2006] NSWSC 665, Whealy J stated the relevant principles to be as follows: 1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal. 2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses. 3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial. 4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses. 5. The obligation to point to substantial reasons is not as onerous as the reference to "special reasons" in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted. 6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter. 7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial. 8. The expression "substantial reasons" is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial. (at para 20) 27 In JW v Director of Public Prosecutions [1999] NSWSC 1244, Simpson J drew attention to one particular aspect of Losurdo. Her Honour said: There may well be other reasons, that qualify as substantial, for a direction that a witness attend for cross-examination. It has to be borne in mind, as Hidden J pointed out in Losurdo at first instance, that a properly conducted committal might benefit the prosecution as much as the defence. While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty . In my opinion exploring the strength of the Crown case is, at least to a point, a legitimate objective of cross-examination at committal, although defendants plainly cannot be given the unbridled rein they previously had. The significance of the evidence to be adduced from a particular witness in the Crown case is clearly a relevant consideration . (at par 8) (emphasis added) 28 In Abdel-Hady v Magistrate Freund & Anor (2007) 177 A Crim R 517, Rothman J said: If the magistrate committed the accused for trial in the absence of a direction for these witnesses to attend, the necessary result will be that, at trial, there will need to be a Basha inquiry, because the details of the evidence are unknown to the accused. The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice . It is far better for witnesses to attend at a committal hearing and be cross-examined (even in the risk that they will be cross-examined twice) than have a jury stand down for a trial within a trial with the consequent delay and inconvenience that then occurs. That inconvenience, which is to judge, practitioners and jury, is also felt by the witness, who will, in any event be cross-examined twice, and the victims who must wait around. Ultimately the evidence, and details of it, must be known to the accused. It should also be borne in mind that if the evidence of these witnesses is sufficiently compelling, there may be a plea of guilty arising from their testimony . … Further, her Honour does not disclose that her Honour has taken into account the necessary implications at trial of not requiring the witnesses to attend pursuant to section 91. In those circumstances, her Honour has failed to take into account a relevant circumstance and has erred in so doing . Failure to take into account a relevant circumstance is an error of law that strikes at the heart of the process being undertaken. (paras 44-5,49) (emphasis added) 29 For further consideration of the issue concerning the question of the need for a potential Basha inquiry and its significance in the present context: see generally R v Kennedy (1997) 94 A Crim R 341. Consideration 30 At the forefront of the plaintiff's submission was a complaint that the Magistrate had failed to give adequate reasons. There can be no doubting the obligation which is cast upon a judicial officer to do so. Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247; Sasterawan v Morris [2008] NSWCA 70. In Soulemezis (supra), McHugh JA said that "a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles …The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis for the judge's decision" (at 278-9). It was submitted that this was a case that bore similarity to Sasterawan (supra) in that the reasons "did not enlighten the reader as to the reasoning process which led to them" (at para 48). 31 Due allowance must be made for the fact that the Magistrate delivered his judgment ex-tempore in what was undoubtedly a busy list: see Acuthan v Coates (1986) 6 NSWLR 472. No doubt his Honour was also reasonably familiar with the relevant principles. Nevertheless some of the reasons which he expressed are difficult to follow and the reasons themselves are decidedly economical. It is to be observed that his Honour does not refer, except in passing, to the factual background against which the application fell to be determined. Nor was any assessment made of the nature and significance of the evidence which was sought to be elicited in cross-examination in terms of that factual background. Nor was "discrete consideration" given to "what topic or topics might be the subject of cross-examination": see DPP v Rainibogi [2003] NSWSC 274 [at para 49]. The failure to make reference to any of those matters inevitably gives rise to concerns about the manner in which his Honour approached his task. 32 Insofar as his Honour did provide reasons, it is difficult to see how they could "enlighten the reader" or illuminate his decision. Although it scarcely determines the matter, I would not have described the application, as his Honour did, as "vague". As best as I can understand his Honour's reasons, he regarded the fact that Mr Farhat had made inconsistent statements as being an insufficient basis for permitting cross-examination of him. He described that situation as being "not unusual". In Murphy v Director of Public Prosecutions & Anor [2006] NSWSC 965, Whealy J said: [t]he Magistrate's statement "it is clearly not distinguishable from the other matters that go up to the Court", indicates to me that her Honour has fallen into the error of considering that s 91 requires that there be something "out of the ordinary" or "unusual" so as to warrant a finding of "substantial reasons". The authorities make it clear that this is not so. The reasons simply must have substance in the context of the issues that are likely to arise in the particular proceedings. (at para 61) 33 His Honour's observations are apposite to the present case. 34 The fact that a critical witness, including a complainant, has made inconsistent statements, may nonetheless warrant making an order under the section: see B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297 at 303-304. On the other hand in Kennedy (supra), Hunt CJ at CL said that "two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial" (at 352): see also Director of Public Prosecutions v O'Conner (2006) 181 A Crim R 294. Nevertheless, it has been recognised that cross-examination may well be justified where the inconsistencies have the consequence that the defendant does not know what case he has to meet: Murphy (supra) at para 44. Not only did his Honour not address that critical question, his Honour appears to have distracted himself from the test which he was bound to apply by referring to an irrelevant consideration, namely what he considered to be the "tedious and regular" basis upon which such applications are made. 35 Moreover, this was not an inconsistent statement of what may be described as the conventional kind. Put simply, Mr Farhat's position fundamentally changed after having received an inducement. One of the matters which the plaintiff sought to explore in cross-examination were the circumstances in which that inducement was offered. It is undoubtedly true, as counsel for the second defendant submits, that the plaintiff could have sought to obtain information about this issue by either issuing a subpoena or seeking particulars. However, he was also entitled in my view, to have the sworn evidence of the witness upon the subject. 36 So far as the evidence about "codes" is concerned, it is of course true as his Honour observed, that it will be incumbent upon the prosecution to prove beyond reasonable doubt that the words used by the participants in the various intercepted telephone calls do in fact relate to drug trafficking. That said, one would reasonably anticipate that the capacity of the tribunal of fact to make that determination would be enhanced by whatever evidence emerges from cross-examination upon that topic. Be that as it may, the Magistrate appears to have again been distracted from the task at hand by stating his conclusion without providing any explanation for it. His Honour said that "it would not seem to me that any further examination of the detail, the whys and wherefores of how these words were settled upon is going to lead anywhere". The fact is, however, that the second defendant seeks to rely upon the evidence of these two witnesses in proof of its case. It was in that context that the plaintiff sought to ascertain the basis upon which their opinions were formed. As Studdert J observed in the passage from Hanna v Kearney, which was referred to with approval in Losurdo (supra), "requiring a witness for cross-examination … for an understanding of the basis of a relevant opinion held by a witness" may amount to "substantial reasons" within the meaning of the section. 37 As I have already indicated, there were also other aspects of Mr Farhat's evidence which lacked precision. In those circumstances the plaintiff was also entitled, in my view, to cross-examine Mr Farhat in order to gain a proper understanding of the case which was being advanced against him. For that reason, I do not regard as legitimate his Honour's characterisation of the application as being in the nature of a "fishing expedition". 38 Furthermore, it is common ground that an application for a Basha enquiry in respect of the evidence of the two witnesses, would be bound to succeed. That being so, I accept that the Magistrate also erred in not adverting to the fact that the making of the order sought will obviate the need for such an inquiry. See Abdel-Hady (supra). 39 Finally, it is quite possible that a properly conducted cross-examination of the witness will achieve other benefits which may well further the "interests of justice", including the interests of the second defendant. See Losurdo (supra). Cross-examination may reveal, for example, that the evidence of Mr Farhat was not contaminated by the offer of an inducement or by the opinion of any police officer, including Detective Inspector Patton. Cross-examination would also enable the plaintiff to decide if there is any evidentiary basis upon which he might challenge the admissibility of any of the evidence which the second defendant seeks to lead against him. At the very least, the issues at any trial are likely to be narrowed. It is also conceivable that the plaintiff having tested the evidence, may come to the view that the Crown case against him is of such cogency that his interests are best served by pleading guilty. See JW (supra); Abdel-Hady (supra). That is not a matter which should be lightly put to one side in a case which, as I have said, attracts a maximum penalty of life imprisonment. 40 For all those reasons I have concluded that the plaintiff has established jurisdictional error of the kind referred to in the authorities cited in Steele (supra) and that accordingly he is entitled to the relief which he seeks. ORDERS 41 1 The decision of his Honour Magistrate Andrew George made on 30 June 2009 declining to direct that Hussein Farhat and Detective Inspector Steven Patton attend to give oral evidence at the hearing of the committal proceedings is quashed. 2 The proceedings are remitted to the Local Court to be heard and determined according to law. 3 Any order staying the committal proceedings until the decision of this Court is dissolved. 4 The parties have liberty to apply on the question of costs within 7 days. ********** 04/12/2009 - Correction of appearance - Paragraph(s) Coversheet 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. 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