Citation: Boumelhem v Director of Public Prosecutions & Anor [2002] NSWSC 1046
Court: Supreme Court of New South Wales (Common Law Division)
Date: 13 November 2002
Judge(s): Sperling J
Background
The plaintiff, Michel Boumelhem, faced committal proceedings in the Local Court on charges of indecent assault and two counts of sexual intercourse without consent, allegedly committed on 25 and 26 June 2000. At the committal hearing, his solicitors applied under section 48E of the Justices Act 1902 for the magistrate to direct certain prosecution witnesses to attend and give oral evidence rather than proceeding on the basis of their written statements alone.
The witnesses in question were the complainant's husband, a medical receptionist, and a doctor who had examined the complainant shortly after the alleged offences. Magistrate McDermid refused the application and adjourned the committal pending the outcome of a Supreme Court challenge.
The plaintiff sought a declaration and an order quashing the magistrate's ruling, arguing the magistrate had erred in law in refusing to direct the witnesses' attendance.
Legal Issues
- Whether the magistrate erred in refusing to direct the complainant's attendance to give oral evidence, which required a finding of "special reasons" under section 48E of the Justices Act 1902 (because the complainant was a victim of an offence involving violence)
- Whether the magistrate erred in refusing to direct the attendance of the other witnesses (the husband, receptionist, and doctor), which required a finding of "substantial reasons" under the same provision
- Whether any error of legal principle or reasoning in the magistrate's ruling was disclosed
Decision
Sperling J dismissed the summons. The court found that the magistrate's ruling was discretionary in nature and that no error of legal principle or reasoning had been demonstrated.
On the question of "special reasons" for directing the complainant's oral attendance, the court noted the existing authority that prejudice to the defendant through being unable to cross-examine the complainant is not, by itself, sufficient. While inconsistencies between a complainant's statements may, in some circumstances, warrant oral examination, the court observed that in this case there was no uncertainty about what version of events the accused would need to meet.
On the "substantial reasons" test for the remaining witnesses, the court affirmed the Court of Appeal's position in DPP v Losurdo that each case turns on its own facts and circumstances. That assessment is a matter for the individual magistrate to make. The court found that the learned magistrate was not bound, on the material before the court, to find either special or substantial reasons in respect of any of the witnesses.
Orders Made
- Summons dismissed with costs.
Key Takeaways
- Under section 48E of the Justices Act 1902, where a witness is a victim of an offence involving violence (which includes sexual offences as defined in the legislation), a magistrate may only direct oral attendance if satisfied there are "special reasons why, in the interests of justice" oral evidence is required; a higher threshold than the "substantial reasons" test that applies to other witnesses.
- The fact that a defendant cannot cross-examine a complainant at committal does not, without more, constitute special reasons for directing attendance, even where the accused denies the alleged acts.
- Inconsistencies between a complainant's statements may, in appropriate cases, justify directing oral attendance, but the mere possibility that a witness could be discredited in cross-examination is insufficient to establish the requisite threshold.
- A magistrate's ruling under section 48E is discretionary, and the Supreme Court will not interfere unless an error of legal principle or reasoning is established.
- In dismissing the summons, Sperling J confirmed the approach from DPP v Losurdo that the "substantial reasons" test is fact-specific and primarily a matter for each individual magistrate to assess.
Legislation and Cases Referenced
Legislation
- Justices Act 1902 (NSW), ss 41, 48A, 48E
Cases
- B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 298
- Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618