Citation: Black v Director of Public Prosecutions & Anor [2003] NSWSC 442
Court: Supreme Court of New South Wales (Common Law Division)
Date: 27 May 2003
Judge(s): Michael Grove J
Background
The plaintiff was charged in the Local Court with two counts of murder, arising from killings alleged to have occurred on 28 May 2002 near a housing commission complex at Sutherland. At committal proceedings, the plaintiff applied under s 48E of the Justices Act 1902 for directions requiring a number of prosecution witnesses to attend for cross-examination. The prosecution witnesses had provided written statements but had not consented to attend voluntarily.
The magistrate granted directions for six witnesses to attend and be cross-examined on limited issues. However, she refused a direction for nine further witnesses, including two police officers, to attend. She also declined to expand the permitted areas of cross-examination for the six witnesses already directed to attend.
The plaintiff sought review in the Supreme Court, arguing the magistrate had constructively failed to exercise the jurisdiction conferred on her by s 48E. The DPP, as first defendant, opposed the application; the magistrate filed a submitting appearance.
Legal Issues
- Whether the Supreme Court has jurisdiction to review, on the merits, a magistrate's decision to refuse a direction under s 48E of the Justices Act 1902.
- Whether the magistrate applied the correct legal test ("substantial reasons why, in the interests of justice, the witness should attend") when considering the plaintiff's applications.
- Whether the magistrate's refusal to direct Detective Hutcheson to attend for cross-examination amounted to a constructive failure to exercise jurisdiction.
- Whether any of the other six grounds of challenge disclosed a jurisdictional error warranting intervention.
Decision
Grove J confirmed that the Supreme Court cannot review a Local Court committal decision simply because the magistrate may have been wrong on the merits. The applicable principle, drawn from McKirdy v McCosker and Ex parte Hebburn Ltd, is that the court intervenes only where the magistrate failed to exercise jurisdiction at all, or so misconceived the nature and extent of the jurisdiction that the purported exercise was no exercise of it. A constructive failure to exercise jurisdiction can arise from applying the wrong test.
On the applicable statutory test, the court confirmed that under s 48E(2)(b), the standard is "substantial reasons" why attendance is in the interests of justice. This is a wider standard than the "special reasons" required for alleged victims of violence under s 48E(2)(a). Establishing substantial reasons does not require the case to be exceptional or unusual, but the provision plainly aims to limit time spent on committals, preventing them from becoming a full dress rehearsal for trial.
Of the six grounds of challenge advanced, five were rejected. The court found no basis to conclude that the magistrate had failed to give individual attention to each application, misunderstood the test, or made any jurisdictional error in respect of those witnesses she declined to direct to attend. The magistrate's comparative brevity of reasons was attributed to efficient avoidance of unnecessary repetition, not to any failure of attention.
Ground 4, concerning Detective Hutcheson, was the sole ground upheld. The court found that, in relation to that witness, the magistrate had applied the wrong test in forming her opinion, constituting a constructive failure to exercise jurisdiction. The matter was remitted to the Local Court to reconsider that specific question in accordance with the judgment's reasons.
Orders Made
- The matter is remitted to the Local Court to reconsider, in accordance with the court's reasons, whether a direction should be given for Detective Hutcheson to attend for cross-examination.
- Otherwise, the summons is dismissed.
- The stay of proceedings ordered on 7 April 2003 is discharged.
Key Takeaways
- The Supreme Court's supervisory role over Local Court committal decisions is narrow: it does not permit a rehearing on the merits or correction of mere legal error. Intervention is available only where the magistrate failed to exercise jurisdiction at all, or fundamentally misconceived its nature.
- A constructive failure to exercise jurisdiction under s 48E occurs where a magistrate applies the wrong test in deciding whether to direct a witness to attend. This is distinct from, and does not require, a finding that the magistrate reached a wrong conclusion on correct principles.
- Under s 48E(2)(b), "substantial reasons" in the interests of justice is the applicable threshold where the witness is not an alleged victim of violence. That standard is wider than the "special reasons" threshold and does not require the circumstances to be exceptional or unusual.
- Brevity in a magistrate's reasons is not, in itself, evidence of a failure to consider individual applications, particularly where applications followed a discernible pattern and unnecessary repetition was properly avoided.
- In upholding Ground 4, the Supreme Court confirmed that the remedy for a constructive failure to exercise jurisdiction is remittal to the lower court for reconsideration, not a direction by the Supreme Court on the merits of the application.
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW), particularly ss 41(10), 48E(1A), 48E(2)
- Supreme Court Act (NSW), ss 65, 69, 75
- Trade Practices Act 1974 (Cth)
Cases:
- Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
- Goldsmith v Newman (1992) 59 SASR 404
- Hanna v Kearney [1998] NSWSC 227
- J.W. v Director of Public Prosecutions [1999] NSWSC 1244
- McKirdy v McCosker (2002) 127 A Crim R 217
- O'Brien Glass v Cool & Sons (1983) 77 FLR 441
- R v Kennedy (1997) 94 A Crim R 341
- R v Losurdo (1998) 101 A Crim R 162
- Saffron v DPP (NSW) (1989) 16 NSWLR 397
- Tillmann's Butcheries v A.M.I.E.U. (1979) 42 FLR 331
- Wade v Burns (1966) 115 CLR 537