Citation: Micallef v DPP & Anor [2001] NSWSC 1172
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 December 2001
Judge(s): Hidden J
Background
The plaintiff faced committal proceedings in the Local Court on a charge of armed robbery with wounding, arising from an incident at a Chester Hill pharmacy car park. The prosecution case included DNA evidence, firearms recovered from a premises allegedly occupied by the plaintiff, and statements made by his girlfriend, who told police he had hidden guns, identified a baseball cap found at the scene as his, and recounted him admitting to the robbery.
The plaintiff applied under s 48E(2)(b) of the Justices Act 1902 for a direction requiring that girlfriend to attend the committal proceedings and give oral evidence, so she could be cross-examined. The plaintiff's solicitor, in written submissions, asserted she had since told him that her police statements were untrue and made under coercion, and that she would resile from them if called.
The magistrate refused the application. The plaintiff then sought relief in the Supreme Court, asking for a declaration that the magistrate had erred and an order that the matter be reconsidered.
Legal Issues
- Whether the magistrate applied the correct legal test when determining whether "substantial reasons" existed, within the meaning of s 48E(2)(b) of the Justices Act 1902, to require a witness to attend and give oral evidence at committal proceedings.
- Whether the magistrate erred by treating the availability of other prosecution evidence as determinative of the application.
- Whether the Supreme Court should exercise its discretion to intervene, given the concurrent trial of a co-accused was imminent.
Decision
Hidden J found that the magistrate's reasons did not address the correct question. The magistrate appeared to discount the solicitor's unchallenged written assertion, noting the absence of sworn evidence from the witness herself. Hidden J disagreed with that approach: although the solicitor's statement was not on oath, it was unchallenged and worthy of acceptance, and raised a serious question about the reliability of the witness's police account.
The magistrate further disposed of the application on the basis that the witness's evidence was not essential because other prosecution material formed a strong case. Hidden J held this was the wrong test. Citing the Court of Appeal's analysis in DPP v Losurdo (1998) 44 NSWLR 618, and Studdert J's observations in Hanna v Kearney, the court confirmed that "substantial reasons" under s 48E(2)(b) are not limited to situations where cross-examination might lead to discharge or a no-bill application. The availability of other inculpatory evidence was not determinative.
Hidden J characterised the magistrate's approach as a constructive failure to exercise the jurisdiction conferred by the provision, relying on Acuthan v Coates (1986) 6 NSWLR 472. On the question of discretion, the DPP submitted that the plaintiff would likely be committed on other evidence and that any examination of the witness could occur at trial under the practice in R v Basha (1989) 39 ACrimR 337. Hidden J declined to accept that approach, agreeing with Hulme J in Dawson v DPP [1999] NSWSC 1147 that a "Basha Inquiry" at trial is not a substitute for properly conducted committal proceedings. The court also declined to predict that the plaintiff would necessarily be committed in the absence of the witness's evidence.
Orders Made
- The matter is remitted to the magistrate to be determined according to law.
- No declaration was made (the court considered its reasons sufficient to make the position clear).
- Costs were reserved, with liberty to the parties to be heard if necessary.
Key Takeaways
- Under s 48E(2)(b) of the Justices Act 1902, the test for requiring a witness to attend committal proceedings is whether there are "substantial reasons" in the interests of justice, and that threshold is not confined to cases where cross-examination is likely to result in discharge or a no-bill application.
- A magistrate's finding that prosecution evidence is otherwise strong, or that a witness is not essential to the prosecution case, does not resolve an application under s 48E(2)(b). The strength of other evidence is a relevant consideration but not determinative.
- Unchallenged written assertions by a solicitor in Local Court proceedings, even if not on oath, may be accepted as raising a genuine and serious question warranting further scrutiny of a witness's reliability.
- The "Basha Inquiry" procedure at trial is not a substitute for the proper conduct of committal proceedings. The Supreme Court declined to withhold relief on the basis that the defendant could cross-examine the witness at trial instead.
- A constructive failure by a magistrate to exercise statutory jurisdiction, as described in Acuthan v Coates (1986) 6 NSWLR 472, can ground an order for remittal to the Local Court for reconsideration according to law.
Legislation and Cases Referenced
Legislation
- Justices Act 1902 (NSW), s 48E(2)(b)
Cases
- Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618
- Hanna v Kearney (Studdert J, unreported, 28 May 1998)
- R v Basha (1989) 39 ACrimR 337
- Dawson v DPP [1999] NSWSC 1147
- Acuthan v Coates (1986) 6 NSWLR 472