Supreme Court New South Wales Medium Neutral Citation: AA v Magistrate Mulroney [2011] NSWSC 953 Hearing dates: 16, 18 August 2011 Decision date: 18 August 2011 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed. 2. The stay ordered on 16 August 2011 is lifted. 3. No order as to costs. Catchwords: CRIMINAL PROCEDURE - Committal proceedings - co-accused appearing in different courts - witness cross-examined in committal proceedings in the Local Court - Children's Court Magistrate refused to make attendance direction for witness under s 91 of the Criminal Procedure Act 1986 - no error or injustice or apprehension of injustice by refusal to make order Legislation Cited: Criminal Procedure Act 1986 (NSW) Category: Principal judgment Parties: AA (First plaintiff) AB (Second plaintiff) Magistrate Mulroney (Defendant) Representation: Counsel: G Corr (Plaintiffs) P Barrett (Defendant) Solicitors: Galloways Solicitors (Plaintiffs) Director of Public Prosecutions (Defendant) File Number(s): 2011/263461 Publication restriction: Publication of the plaintiffs and witness's names are prohibited pursuant to s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW) Judgment 1. This matter comes before me by way of a summons seeking relief in respect of a decision in the Children's Court that cross-examination of a witness, W1, would not be directed pursuant to s 91 of the Criminal Procedure Act 1986. 2. The summons seeks relief in an inappropriate form but it is clear enough that the case made by the plaintiff is that the learned Magistrate took into account an irrelevant matter that significantly affected his Honour's decision and erred in law by disregarding a relevant matter. Since the question in issue is, although important, a simple one, in order to save costs and inconvenience, I have not required amendment of the summons and I understand that counsel on behalf of the defendant does not object to my dealing with the matter by way of determining whether there is an error of law, leaving any question of relief to follow that determination. 3. The plaintiff is one of a number of young persons before the Children's Court at Parramatta charged with murder. Those committal proceedings are part heard. Counsel for three of the young persons, of whom two are plaintiffs before me, sought a direction under s 91 to have W1 called for cross-examination. The Crown case is that W1 was an eyewitness to very significant events surrounding the killing of the victim. Other co-offenders have also been charged and were committed for trial by the Local Court being adults. 4. It was conceded by the Crown in the proceedings in the Local Court that it was appropriate that a direction be made under s 91 in respect of W1 and, indeed, he was cross-examined. However, in the Children's Court, it was submitted, in brief, that the interests of justice did not require W1 to be called again. Tendered before the Magistrate were the statements of the witnesses, which is conventional of course, together with the evidence of W1 in the Local Court (by agreement), but only in this latter respect for the purposes of determining the s 91 application. The tender of that material was by agreement. 5. The solicitor for the third plaintiff, Mr Voros, who is the subject of another summons (as it happens not before me), was principally responsible for making submissions on the point to the learned Magistrate. Mr Corr of counsel for the plaintiffs before me contented himself, quite reasonably, with adopting Mr Voros' submissions. Mr Voros submitted firstly that it was unfair for the Crown, having agreed in the Local Court to a s 91 direction, to adopt a different approach in the Children's Court. He also submitted that there were significant matters not covered by cross-examination in that court. 6. It was also contended that the jurisdiction of the Children's Court as to whether to commit the plaintiffs or not was entirely independent of and separate to any decision that had been made in the Local Court. At all events, the demeanor of the witness when answering questions might be a matter which could have relevance to the decision to commit and the plaintiffs should be given the same opportunity to rely on this factor as the defendants in the Local Court.. 7. The learned Magistrate considered the question whether the interests of justice required W1 to be called for cross-examination and, with the assistance of counsel's submissions on the point, identified the particular areas in respect of which it was argued were not adequately covered by the cross-examination in the Local Court. His Honour concluded that none of those matters warranted the calling of W1, observing that many of them were already the subject of, at least, information available to the plaintiffs for the purposes of conducting any trial that might ensue. 8. The learned Magistrate's approach to the question demonstrates to my mind no error of law. His Honour was invited to consider what had occurred in the Local Court and that was plainly material to the enquiry as to whether there were substantial reasons for requiring W1 to be called again in the interests of justice. In brief, his Honour approached the issue by asking whether it was likely that the plaintiffs would be significantly better off in terms of their understanding of the case or answering the prosecution case were a s 91 direction made. 9. Mr Corr for the plaintiff adds an additional consideration and that is the appearance of injustice. He points out that the other adult co-offenders had the advantage of cross-examining W1 and the ability therefore to put to the Local Court submissions as to the impact that that evidence might have had on whether they should be committed for trial. The plaintiffs were denied that advantage. As I understand Mr Corr, he concedes that if the plaintiffs had been charged alone, and there had been no parallel proceedings against other co-offenders, this argument could not be made since no comparison of the way in which the two groups were treated would arise. 10. To my mind the different procedural courses taken in the Local Court, on the one hand and in the Children's Court on the other, do not give rise to any apprehension of unequal treatment or other injustice. I point out that this particular argument was not made, at least in terms, to the learned Children's Court Magistrate and, not surprisingly, his Honour did not think it necessary to deal with it. There was no application made on behalf of the plaintiffs to tender the evidence of W1 in the substantive proceedings, a course to which the prosecution could not reasonably have objected. 11. The question to my mind is whether any substantive injustice was done to the plaintiffs by the decision of the learned Children's Court Magistrate by way of making any significant error of law. In my view, the learned Magistrate did not err in his approach to the question whether a s 91 direction should be given in respect of W1. 12. It is unnecessary therefore to consider the question of any potential relief. Accordingly, the summons must be dismissed. I make no order as to costs. ********** 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. Decision last updated: 14 November 2016