Supreme Court New South Wales Medium Neutral Citation: Stylianou v Director of Public Prosecutions [2017] NSWSC 766 Hearing dates: 27 February 2017 Decision date: 14 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Application dismissed Catchwords: CRIMINAL PROCEDURE – committal proceedings – application for review of Magistrate's decision refusing to direct witnesses to attend to give oral evidence –where plaintiff sought to explore admissibility of covert recordings – whether Magistrate misconceived the extent of his authority to allow that course – where plaintiff sought to explore mental health and behaviour of complainant – whether Magistrate constructively failed to exercise jurisdiction Legislation Cited: Crimes Act 1900 (NSW), s 66A Criminal Procedure Act 1986 (NSW), Ch 3 Pt 2, ss 64, 65, 66, 70, 91, 93 Evidence Act 1995 (NSW), s 90 Cases Cited: Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 Losurdo v Director of Public Prosecutions (1998) 101 A Crim R 162; [1998] NSWSC 16 R v DRF [2015] NSWCCA 181 R v Kennedy (1997) 94 A Crim R 341 Sim v Magistrate Corbett [2006] NSWSC 665 Thompson v Director of Public Prosecutions [2014] NSWSC 522 Category: Principal judgment Parties: Constantinos Stylianou (plaintiff) Director of Public Prosecutions (first defendant) Local Court of New South Wales (second defendant) Representation: Counsel: H Dhanji SC, M Burke (plaintiff) M Smith (defendant) Solicitors: Nyman Gibson Miralis (plaintiff) Office of the Director of Public Prosecutions (first defendant) Crown Solicitor's Office (second defendant) File Number(s): 2016/250276 Judgment 1. HER HONOUR: Constantinos Stylianou faces three charges of having sexual intercourse with a person under the age of 10 years contrary to s 66A of the Crimes Act 1900 (NSW). The prosecution of the charges has reached the stage of committal proceedings in the Local Court. In those proceedings, Mr Stylianou's solicitor, Mr Miralis, sought directions pursuant to ss 91 and 93 of the Criminal Procedure Act 1986 (NSW) for the attendance of a number of witnesses including the complainant (who is now over the age of 18 years). The Magistrate made a limited direction in respect of the complainant's sister and otherwise refused the application. 2. Mr Stylianou seeks judicial review of the Magistrate's decision on the grounds of jurisdictional error. I have concluded that the challenge to the Magistrate's decision must be rejected for the following reasons. The Crown case 1. The Crown case is based on two separate encounters during the year 2000 giving rise to three criminal charges. The offences are alleged to have been committed when the complainant was aged either six or seven years. Mr Stylianou was then aged 19 or 20 years. 2. The complainant's family and Mr Stylianou's family were friends through their involvement in a church. During the period of the alleged offences, the complainant's father would take the complainant and her two siblings to the home of Mr Stylianou's parents two afternoons per week. The complainant and her siblings would play with Mr Stylianou's youngest siblings while the complainant's father gave music tuition to Mr Stylianou's younger brother. 3. The complainant alleges that, on two such occasions, Mr Stylianou sexually assaulted her in his bedroom. The Crown case alleges that, on the first occasion, there was an act of digital penetration. On the second occasion, it is alleged that there was an act of digital penetration followed by an act of penile/vaginal penetration. In a statement to police, the complainant said that those are the only two incidents she can recall and speak about but that she is confident it happened on other occasions. 4. The complainant said nothing about the incidents at the time. In March 2010, she told a friend that, when she was eight, she had been touched by Mr Stylianou. The friend told her parents and her aunt. The aunt was a police officer; she met the complainant and a friend and the complainant repeated her complaint. Owing to a perceived conflict of interest, the aunt contacted detectives at a different police station and informed them to expect a report. However, the complainant did not go to police at that stage. In around May 2010 she told her mother that "Tino" (Mr Stylianou) had "done something" to her but did not say what. Her mother sent her to a psychologist. 5. In late 2013 the complainant started a relationship with another person. During the course of that relationship, the complainant disclosed that "something had happened" to her as a child but did not say who it was or what had happened. She did say that it was someone from the church community. In late 2014 the complainant saw Mr Stylianou in the street while she was at a restaurant with her partner and her sister. Later that night, she told her partner that Mr Stylianou was the person who had molested her. She gave no detail as to the content of her allegations at that stage. Later that year, the complainant told her father of the allegations at a time when she was concerned he was about to offer Mr Stylianou a position in the church which would involve working with children. 6. The complainant made her first statement to police on 10 February 2015. In September 2015, police obtained a surveillance device warrant to allow conversations between the complainant and Mr Stylianou to be recorded. On 13 October 2015, Mr Stylianou answered a telephone call from the complainant (referred to in argument as "the pretext call"). During that conversation, the complainant outlined her allegations to Mr Stylianou in some detail. He stated that he was shocked and denied that anything of that kind had happened. He suggested they meet to discuss the matter in person. 7. On 20 October 2015, the complainant met Mr Stylianou at a MacDonald's restaurant. They had a lengthy conversation which was also recorded pursuant to the authority of the warrant. Towards the conclusion of that conversation, Mr Stylianou made a number of statements which plainly constitute admissions to some of the conduct described by the complainant. He told the complainant that he had been to confession many years ago "talking to [his confessor] about his inappropriate behaviour with [the complainant]". 8. There were specific aspects of the complainant's account which Mr Stylianou said he did not remember. He said "I remember you coming down to my room. I remember us spending time together and I remember touching you, yes I do, but not putting my penis into…" He was interrupted by the complainant but then continued "I would have touched you down there, which caused you to be sore." There was a great deal more to the conversation; that is only an example of the kind of exchange the Crown will undoubtedly rely upon at trial as an admission. Principles applicable to the Magistrate's determination 1. The procedure for the conduct of committal proceedings is addressed in Pt 2 of Ch 3 of the Criminal Procedure Act. The Act contemplates that committal proceedings may be conducted without requiring the attendance of any witnesses, subject to the provisions of ss 91 and 93. 2. Section 91 provides that the Magistrate may direct the attendance of a person who has made a written statement to be tendered by the prosecution. If both parties consent to such an application, the Magistrate must give the directions: s 91(2). However, in the absence of consent, the Magistrate may direct a witness to attend "only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence". 3. Section 91(8) prohibits the court from requiring the attendance of a complainant in proceedings for a child sexual assault offence if the child was under 16 when the offending began and is under 18 at the time of the application. That section does not apply in the present case because the complainant was over 18 at the time of the application. 4. The position of the complainant was governed by s 93, which sets a higher bar for the attendance of an alleged victim of an offence involving violence. Section 93(1) provides: 93 Victim witnesses generally not to be directed to attend (1) Despite section 91 (other than subsection (8) of that section), in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence. 1. There was no contest as to the proper approach to those provisions. As to the test under s 91, the relevant principles were summarised briefly (with an unnecessary apology for perceived inelegance) in the judgment of Whealy J in Sim v Magistrate Corbett [2006] NSWSC 665 at [20], 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. 1. The test under s 93 sets a higher bar. The DPP referred to the remarks of Hunt CJ at CL in R v Kennedy (1997) 94 A Crim R 341 (with whom Grove J agreed). His Honour said at 352: What are "special reasons" and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial. Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all of the cases which I have read is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not. 1. The DPP also relied on the remarks of Gleeson CJ in Kant v Director of Public Prosecutions (1994) 34 NSWLR 216, considering the predecessor to that section, where his Honour said that the purpose of the provision was to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on victims of crime. The application in the Local Court 1. Mr Miralis sought a direction for the attendance of every witness who had made a written statement in the proceedings other than the police officer who fitted the surveillance device. He also sought the attendance of two people who had not provided statements but were referred to in the police brief, being the complainant's mother and the mother of the friend to whom the complainant had complained. That aspect of the application, which was not pressed before the Magistrate, was misconceived. The power conferred by s 91 is confined to directing the attendance of the witnesses identified in the police brief ("the person who made a written statement that the prosecution intends to tender"). It does not confer authority to direct the attendance of additional persons from whom it is considered a statement might have been obtained. 2. The application was supported by written submissions running to some 28 pages. Leaving aside the abandoned application in respect of persons who had not made a written statement to police, the submissions identified two principal reasons for seeking to cross-examine witnesses at the committal hearing. 3. First, it was submitted that there were inconsistencies in the evidence. Specifically, it was submitted that there were inconsistencies between the statements made by the complainant to police and the version of events she outlined to Mr Stylianou during the covertly recorded conversations. Separately, it was submitted that there were inconsistencies between her version of events and versions contained in other witness statements (the complaint witnesses). 4. Secondly, it was submitted that "further and better particulars" were required as to the instructions given by police relating to the "pretext call" and "other [unidentified] aspects of the investigation". 5. The written submissions expanded upon those points by reference to each witness. In each case, the topics as to which it was proposed to cross-examine the witness were identified. 6. In the case of complaint witnesses, it was proposed to cross-examine the witness to obtain "further and better particulars" regarding who was present when the complaint was made and the content of the complaint. Separately, it was foreshadowed that each witness would be cross examined as to his or her knowledge of "mental health issues of the complainant including hallucination"; their knowledge and awareness of the complainant's alleged drug and alcohol addictions and their knowledge of "the strained relationship between the complainant and her father". 7. Further, as to the father, it was foreshadowed that there would be cross- examination regarding "observations of the behavioural/attitude changes in the complainant; further and better particulars regarding family arrangements and after-school movements at the time of the alleged offence; the perceived role of Mr Stylianou in the father's removal from his position with the church and further and better particulars about the relationship with other witnesses" including the aunt who was a police officer. 8. As to police witnesses, it was foreshadowed that there would be cross- examination regarding the circumstances surrounding the pretext phone calls to Mr Stylianou and "further and better particulars regarding the investigation". 9. The Magistrate was persuaded that there should be a direction requiring the complainant's sister to attend to give evidence at the committal proceedings in respect of the content of a complaint made to her by the complainant. Her statement referred to a conversation they had had but did not provide the content of the conversation. Otherwise, the Magistrate refused the application. Grounds for review 1. As often occurs in applications of this kind, the grounds for review were refined and clarified as the argument was developed. The plaintiff initially challenged every adverse aspect of the Magistrate's decision. At the hearing of the application in this Court, he abandoned the challenge to the Magistrate's refusal to allow cross-examination as to alleged inconsistencies between the complainant's version of events to police and what she said to the complaint witnesses. In my respectful opinion, that was a sensible concession. There was no basis for seeking a direction for the attendance of those witnesses at the committal hearing. There is barely any discernible inconsistency and none which cannot readily be understood as being attributable to the circumstances in which the relevant "complaint" or disclosure was made and the use of different terms by different people in different contexts. The Magistrate's rejection of the application on that ground was plainly right. 2. Leaving that point aside, the summons specified six grounds for review identifying two kinds of error. Grounds 1 to 3 allege that the Magistrate "constructively failed to exercise jurisdiction, or otherwise made an error of law on the face of the record, by failing properly to apply the correct test" under the relevant section (s 93 in the case of the complainant; s 91 in the case of all other witnesses). Grounds 4 to 6 allege "error on the face of the record in having regard to irrelevant considerations, and failing to have regard to relevant considerations", in applying the relevant test in each case. 3. Those grounds do not make plain the precise error complained of. The true complaint was, with respect, better expressed in the written and oral submissions of Mr Dhanji SC, who appeared with Mr Burke for the plaintiff in the proceedings in this Court. The written submissions (at para 42) contend that the Magistrate's failure to exercise jurisdiction manifested itself in two ways, expressed as follows: 1. "Firstly, his Honour had regard to s 70 of the Criminal Procedure Act in a manner which led to him misconceiving the extent of his powers in the circumstances of the particular case"; and 2. "Secondly, his Honour failed properly to apply himself to the question that the law prescribes by failing to adequately consider the application by having regard to the entire facts and circumstances of the matter and the issues which critically arise or are likely to arise in the trial." 1. Mr Dhanji acknowledged that there is a measure of overlap between the grounds for review identified in the summons and that they are, in substance, different ways of expressing the two complaints set out above. 2. There was some dispute in the present case as to what the plaintiff is required to establish in order to obtain prerogative relief. The DPP submitted that, in order to establish jurisdictional error, it would be necessary for the plaintiff to demonstrate that there was only one answer that was open to the question for decision. The authority cited for that proposition was the decision of Davies J in Thompson v Director of Public Prosecutions [2014] NSWSC 522 at [53], where his Honour said: For the Plaintiff to establish jurisdictional error he would need to demonstrate that there was only one answer that was reasonably open to the question whether DH should be required to attend to give oral evidence: McKirdy v McCosker [2002] NSWSC 197 at [37]. If I concluded only that the Magistrate came to a different view from the view to which I would have come, that would only be an error within jurisdiction: McKirdy at [36]. 1. Having considered the whole of the decision of Davies J, including his Honour's careful analysis of principle at [28] to [32] of the judgment, I do not think his Honour is to be understood to have stated the bare proposition that appears at [53] as a stand-alone test. The plaintiff accepted that, in order to succeed on an application for relief in the nature of mandamus, he must establish jurisdictional error, which would be established if there has been an actual or constructive failure by the Magistrate to exercise jurisdiction under the relevant Act. That is the approach I have taken in the present case. Section 70 and the alleged misconception of power 1. An aspect of the application in the Local Court was that the attendance of witnesses at the committal proceedings would enable the plaintiff to explore the admissibility of the covert recordings. Specifically, the plaintiff wished to explore whether the two police officers had given any instruction to the complainant (such as how to go about engaging the plaintiff in conversation during the pretext call). For that purpose, Mr Miralis sought to question two police officers and the complainant. 2. In rejecting that aspect of the application, the Magistrate said: There may well be some challenge to the proposed admission into evidence of the recorded conversations which form part of the prosecution brief. However, that issue is to be left to the trial judge. Section 70 of the Criminal Procedure Act is applicable regarding the excluding of evidence. 1. Mr Dhanji submits that those remarks reveal a misconception on the Magistrate's part as to the extent of his powers. 2. Section 70 provides: 70 Certain evidence may not be excluded A Magistrate in committal proceedings may not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995. 1. The purpose of the section is clear when regard is had to the task for the Magistrate in committal proceedings, which is to consider the evidence and determine whether a person should be committed for trial. Section 64 provides: 64 Decision about committal When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence. 1. If the Magistrate forms that opinion, he or she must commit the accused person for trial; if not, the Magistrate must discharge the accused person: ss 65 and 66. Section 70 simply directs the Magistrate, in making that decision, not to preempt the trial judge's exercise of any discretion to exclude evidence. In other words, in cases where there is evidence which is relevant but which might be excluded in the exercise of a discretion reposing in the trial judge, the Magistrate is directed to include that evidence in his or her consideration for the purpose of making the determination required by s 64. 2. It does not follow that issues relevant to the exercise of the trial judge's discretion to exclude evidence cannot be explored at the committal hearing. On the contrary, it is clear that cross-examination on such issues can be allowed in an appropriate case. An example of a case in which such an approach was approved is the case of Losurdo v Director of Public Prosecutions (1998) 101 A Crim R 162; [1998] NSWSC 16, a decision to which the Magistrate was referred during argument in the present case. 3. In Losurdo, it was clear that an issue at trial would be the legality of a police search of the accused's car. The accused sought to cross-examine police officers at the committal to investigate the lawfulness of the search which, importantly, turned on the state of mind of the police officers who conducted it (in particular, whether they had the necessary reasonable suspicion). Hidden J said: It will be remembered that one of the purposes of cross examination of prosecution witnesses in this case was to explore the lawfulness of the search. What was elicited by that cross-examination might bear upon the discretion of a trial judge under s 138 of the Evidence Act 1995 (NSW) to reject evidence of the search. Counsel for the Director submitted that this is not a legitimate reason to cross-examine witnesses at committal because a Magistrate has no power to exercise such a discretion in those proceedings: s 41(8A) of the Justices Act. In my view, that is not to the point. 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. 1. The burden of Mr Dhanji's submission was that the Magistrate in this case wrongly assumed otherwise, apparently taking the view that it was not open to him to permit the plaintiff to explore such issues at all in the committal proceedings. Mr Dhanji submitted that, in taking that approach, the Magistrate took an erroneously narrow view of his power and so constructively failed to exercise jurisdiction. 2. In order to assess that submission, it is necessary to consider the way in which the argument was put in the Local Court. In the written submissions, Mr Miralis said: To date, there is no evidence on the circumstances surrounding these calls, in particular what, if any, instructions were given to the complainant prior to the calls. This includes, but is not limited to, things to say, things not to say, what words to use, what she should try and get the accused to say. It is essential that this is explored at the initial stage so as to properly prepare for a future application. 1. In support of that submission, Mr Miralis cited two decisions of the District Court in which covert recordings obtained in similar circumstances were excluded at trial. Presumably unbeknownst to Mr Miralis, those decisions had by then been overruled by the Court of Criminal Appeal in an appeal against the second of the two: see R v DRF [2015] NSWCCA 181. At the time Mr Miralis argued the present matter in the Local Court, access to that judgment remained restricted (it is now published). The significance of that decision is considered below. 2. The principal focus of Mr Miralis's submissions as to his entitlement to explore the admissibility of the covertly recorded conversations was the contention that the complainant had made a series of misrepresentations to the plaintiff during those conversations. The application faced the obvious hurdle that any such misrepresentation is contained on the recordings themselves. The manner in which cross-examination as to "the circumstances in which the recordings were made" would shed any further light on that question was, with respect, not well articulated. 3. Mr Miralis submitted that the plaintiff's entitlement to explore the circumstances in which the recordings were made afforded a substantial reason in accordance with the decision in Losurdo why the witnesses should attend to give oral evidence. There is an important difference between the circumstances in Losurdo and the present case. In Losurdo, the lawfulness of the search turned critically on the state of mind of the police officers who conducted it. It was not suggested that the state of mind of the police in the present case can inform the admissibility of the covert recordings. Logically, it is difficult to see how it could. 4. The Crown pointed out to the Magistrate during argument that any representation made by the complainant to the plaintiff was contained on the recordings themselves. She submitted that there was no benefit to be derived from calling the complainant or the two police officers to cross examine them as to how the complainant came to use the language she did. She acknowledged that the question whether the complainant had been trained as to how she might pose questions to the plaintiff might properly be explored on a voir dire at the trial but submitted that that consideration alone would not satisfy either of the statutory tests for directing witnesses to attend the committal proceedings. 5. In considering what is to be gleaned from the Magistrate's remarks, I am mindful of the fact that, although his Honour did reserve his decision (for a week), it was given orally. Having given close consideration to the way in which the argument was developed in the Local Court, I am not persuaded that the Magistrate's remarks set out above reveal that he took an erroneously narrow view of his power under ss 91 and 93 of the Criminal Procedure Act. Rather, it seems more likely that his Honour took the view that, whatever additional (unidentified) issue might be explored, that should more appropriately occur in the context of pre-trial argument, as submitted by the Crown. The reference to s 70 in that context was perhaps inapt since the Magistrate had not been asked to exclude any evidence but I am not persuaded that it reveals error. It may have been a short-hand way of acknowledging the proposition contended for by the Crown, namely, that such issues can and ought more appropriately be explored in the trial court. 6. I do not mean to suggest that the test for directing a witness to attend a committal hearing could never be met by an application seeking to explore the likely admissibility of evidence at the trial. It is not difficult to imagine circumstances in which such an issue might afford substantial reasons for requiring a witness to attend to give oral evidence and even special reasons for requiring an alleged victim to attend. But nothing in the matters put to the Magistrate suggested this was such a case. All that was put forward was a vague desire to explore unidentified issues the likely helpfulness of which appears to have been entirely speculative. 7. In case I am wrong in my understanding of the Magistrate's remarks and his Honour did take an erroneously narrow view of his power to direct witnesses to attend the committal proceedings to allow the plaintiff to explore the admissibility of the covert recordings, it is appropriate to consider the significance of the decision of the Court of Criminal Appeal in R v DRF. As already noted, that decision had been made at the time argument was heard in the Local Court in the present case but remained restricted, presumably on the basis that the accused in that case was still facing trial at that stage. 8. In my view, the decision in DRF makes plain that, even if the Magistrate misapprehended the scope of his authority under ss 91 and 93 to allow questioning of the kind sought, there is no utility in remitting the proceedings for that purpose. 9. The circumstances in DRF were largely similar to those of the present case. One difference is the fact that, in DRF, the accused had declined to be interviewed by police at the time of the covert recordings. Accordingly, there was an argument that the covert recordings subverted his express intention to exercise his right to silence. 10. The argument in the Court of Criminal Appeal proceeded on the basis of a concession by the Crown that, in participating in the covert recording of the conversations, the complainant was "an agent of the State". In light of the position taken by the Crown, Simpson JA proceeded on that premise but expressed doubt as to whether the concession was properly made: at [57]. Her Honour was at pains to note that this should not be taken as acceptance that the complainant had that status or as a general finding by the Court of Criminal Appeal that, where a complainant at the behest of police participates in a conversation with an alleged offender so that the conversation can be recorded, the complainant is acting as an agent of the State. 11. In any event, proceeding on the strength of the Crown's concession, Simpson JA gave cogent reasons for concluding that there was no basis in that case to hold that the circumstances in which the evidence was obtained rendered it unfair to the accused for the Crown to use the evidence at his trial: at [89] to [99]. Her Honour's analysis of that issue should probably not be regarded as part of the ratio of the decision, since the trial judge's ruling was set aside on other grounds: at [81]. However, her Honour's analysis of the issue, with which Leeming JA and Schmidt J agreed at [1] and [105], points overwhelmingly to the conclusion that there is no utility in remitting the matter for further consideration by the Magistrate. In particular, Simpson JA noted two important considerations (at [98]). First, while the complainant was acting at the suggestion of investigating police, since DRF did not know that, his responses were not influenced by the police involvement. The second was that the conversation was recorded and accordingly provided a reliable record of what the respondent in fact said. 12. Each of those considerations applies with equal force in the present case. No further issue was identified either in the Local Court or at the hearing before me which might fruitfully be explored. Logically, it seems unlikely that there is any issue which might shed further light on the admissibility of the recordings based on discussions that occurred between police and the complainant before the recordings were made. If the police coached her to make certain statements, the extent to which she did so is recorded on the tapes. Conversely, if the police expressly told her not to make certain statements but she did so anyway, that is also captured on the tapes. The position is far removed from the circumstances of Losurdo, where the critical issue was the state of mind of the relevant police officers. 13. The important issue for the purpose of considering the admissibility of the recordings under s 90 of the Evidence Act 1995 (NSW) is the question of unfairness. One element of unfairness that can be asserted is the fact that the plaintiff plainly did not know the conversation was being recorded. However, as noted by Leeming JA in DRF at [3], that is a feature of every case involving a surveillance device and does not on its own render the use of the recording unfair. Otherwise, the degree of unfairness will be measured by what was in fact said. 14. In written submissions in this Court, Mr Dhanji submitted that there are two important points of distinction between DRF and the present case. First, he noted that, in DRF, Simpson JA found at [89] that the recorded conversation was one "that might easily have occurred without police intervention". The submission assumed that her Honour was referring to the fact that it would have been easy for the complainant to contact the accused without the assistance of police due to the fact that the complainant's mother was still married to the accused at the time of the conversation. With great respect to the author of the submission, I think it misapprehends the point Simpson JA was making at [89] of the judgment. It is appropriate to set out the whole paragraph: I turn then to apply those considerations to the circumstances of the present case. First, there was no element of coercion in the respondent's engagement with the complainant. The respondent was entirely free to speak or not to speak as he chose. Although it may be accepted that the complainant, in engaging with the respondent on the subject of his assertions of sexual abuse, was acting at the behest of police, the conversation is one that might easily have occurred without police intervention. There is no reason to think that the respondent would have responded differently had the complainant simply confronted him of his own volition. Moreover, the admissions made by the respondent have an apparently high degree of reliability. 1. Reading the paragraph as a whole, the point her Honour was making was that the accused would have engaged in the conversation just as readily had the complainant approached him of her own volition. In other words, the involvement of police, which was unknown to the accused, is not what prompted him to participate in the conversation. The same can surely be said in the present case. 2. Secondly, it was noted that, in DRF, Simpson JA found that there was "no treachery or deception in what either the complainant or police did": at [97]. As already noted, that must be taken to exclude reference to the element of deception necessarily entailed in a covert recording. But in any event, any deception of the accused by the complainant in the present case is transparently exposed on the covert recordings. No cross-examination would be required to make that point. 3. For those reasons, had I been persuaded that the Magistrate took an erroneous approach, I would nonetheless have exercised my discretion to decline to grant the relief sought on the basis of the decision in DRF, which governed the application at the time it was made but which was not drawn to the Magistrate's attention (presumably because it was published with restricted access and had not come to the attention of Mr Miralis). Alleged failure adequately to consider the entire circumstances 1. The second kind of error asserted by the plaintiff was the Magistrate's alleged failure "to adequately consider the application by having regard to the entire facts and circumstances of the matter and the issues which critically arise or are likely to arise in the trial". The plaintiff accepted that his Honour had regard to the relevant sections (ss 91 and 93) and the relevant authorities. It was submitted, however, that in the application of those principles his Honour's reasons were brief (implicitly, too brief), expressing conclusions without providing the reasons for those conclusions. 2. In the written submissions, it was contended on that basis that the Magistrate failed properly to apply himself to the required task in respect of all witnesses. In oral submissions, after indicating that the plaintiff did not pursue the issue of inconsistencies as between complaint witnesses and the complainant, Mr Dhanji stated that the focus of this aspect of the complaint was the evidence in relation to the complainant's "mental health", her use of prohibited drugs and her descriptions of experiencing "dreams or flashbacks or hallucinations" (T5.44). The argument as to those issues was confined to the complainant, her father and her sister (T14.46). 3. The written submissions also addressed an alleged motive to lie (an incident at the church involving the complainant's father). So far as I understood, that argument was also intended to be maintained. 4. Mr Dhanji submitted that those issues are very important to the plaintiff's capacity to meet the case. He submitted, and I accept, that the purpose of committal proceedings is not only to enable an accused to know the case he has to meet but also to know what might be done to meet that case, the ultimate objective being to achieve a fair trial in the trial court. Mr Dhanji noted that an accused person in a case such as the present will be particularly interested to explore the issue of memory and how memory may have evolved. He submitted that the issues as to which the plaintiff sought to cross-examine various witnesses were such as may prompt him to retain expert witnesses to give evidence at the trial about memory or child behaviour. 5. The Magistrate addressed those issues witness by witness. His Honour dealt first with the application concerning the complainant. In her case, of course, the plaintiff had to satisfy the higher test of establishing "special reasons" why she should, in the interests of justice, attend to give oral evidence. 6. As already noted, the plaintiff's solicitor provided lengthy written submissions to the Magistrate which, in turn, were addressed in lengthy written submissions by the Crown. One of the plaintiff's complaints in this Court is that the Magistrate referred to some but not all of the reasons relied upon by the plaintiff to support the application to have the complainant attend to give oral evidence. However, the submissions in this Court did not identify which of the reasons were the subject of that complaint. 7. The Magistrate gave a brief summary of the allegations, the complaint evidence and, importantly, the plaintiff's admissions on the challenged recordings. One of the critical issues which had formed much of the focus of Mr Miralis's submissions in the Local Court was the alleged uncertainty as to the year in which the offences were alleged to have been committed. His Honour found, correctly in my view, that the plaintiff should be in no doubt that the conduct was alleged to have occurred in the year 2000. His Honour then dealt with the foreshadowed challenge to the recorded conversations in the passage addressed above and concluded: Having considered both the oral and written submissions I am not satisfied that there are special reasons why the alleged victim should in the interests of justice attend to give oral evidence in this matter. 1. Mr Dhanji submitted that his Honour's reference to having considered "both the oral and written submissions" in a reserved decision fails to engage with the relevant test. He submitted that it is important to the plaintiff to understand the process that ultimately manifested itself in the making of what the plaintiff says was a false complaint first arising in 2010. He submitted that the issues of the complainant's mental health and drug and alcohol use might reasonably be expected to offer insight into that issue. 2. The Magistrate dealt next with the complainant's father. It may be accepted that his Honour's reasons on that aspect of the application were stated in the form of a conclusion. His Honour said "the issues surrounding [the father's] removal as a parish priest and his daughter's mental health in my view are not matters of substance in the interests of justice requiring cross examination at committal." 3. In my assessment, the brevity of that statement simply reflects the Magistrate's assessment (with which I agree) that there was no merit in the submissions put. It is difficult to expand upon the basis for such a conclusion. 4. The Magistrate accepted, at least implicitly, that the complainant's statement gave a reasonably cogent account of the events giving rise to the charges and of her subsequent complaints. She said that, in around 2009 to 2010, she started smoking a lot of marijuana and was drinking a lot of alcohol. She also said that when she was about 19 years of age, she was gambling a lot of money. She said: I contribute (sic: attribute) these habits to what Tino had done to me and I know that I never really got over it because it took me a long time to get professional help for what he had done. 1. The complainant said that she disclosed what the plaintiff had done to her to a friend on Easter Monday in 2010 (the 28th March). 2. The complainant's father, in a statement dated March 2017, said: Around six years ago things at the church became very difficult. It was a hard time and the president of the church called an AGM. [The complainant] was in the meeting at that time and she heard Tino yelling out "get rid of him. Get rid of him". The individuals at church wanted to get rid of me. The church were supportive of me, just not the individuals at the church. When we got home after this, [the complainant] was an extremely angry girl. She had a beautiful nature as a young child, so to see her so angry for so many years was difficult to see. 1. The complainant's statement made no reference to that incident. 2. Upon analysis, the proposition put on behalf of the plaintiff was that the incident described by the father, which occurred when the complainant was 16 or 17, might possibly explain the fabrication of a false complaint about sexual assaults that occurred some 10 years earlier as retribution for the plaintiff's contribution to the push to have the complainant's father removed as a priest of the church. 3. In my respectful opinion, that was a fanciful theory which the Magistrate was entitled to dismiss out of hand, without discursive reasoning. The suggestion that the entire complaint was a false construct rang hollow in circumstances where the plaintiff has made clear and specific admissions to part of the conduct the complainant describes. Even if the admissions are liable to be excluded at trial in the exercise of the trial judge's discretion, they were relevant to the Magistrate's determination whether special reasons were established. 4. The Magistrate dealt with the application concerning the complainant's sister in similar fashion. As already noted, his Honour was persuaded that there was a proper basis for requiring her to attend to give evidence as to the terms of the complainant's separate conversation with the sister, which was not addressed in her statement. As to the remaining issues, his Honour said: The submissions regarding this witness's knowledge of any mental health, alcohol or drug problems relating to her sister would not be matters of substance and would be disallowed, and likewise any evidence of the complainant's relationship with her father. 1. The plaintiff's application in that respect was even more speculative than in the case of the father. The basis on which her attendance was sought to give oral evidence on these issues was surprising. The submissions stated: Finally, this witness makes no mention of the complainant's mental health issues, or her problems with drug, alcohol and gambling. She also does not mention her relationship with her father. 1. The proposition that the absence of any reference to those issues afforded substantial reasons why the complainant's younger sister should be required to attend the committal proceedings was one the Magistrate was entitled to dismiss out of hand. Again, in my assessment, the failure to expand upon the reasons for that conclusion reflects the weakness of the argument rather than weakness in the decision-making process. 2. For those reasons, I am not persuaded that the decision under review entailed error. The application is dismissed. ********** 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: 05 September 2017