Citation: NANEVSKI v HASKETT & ANOR [2006] NSWSC 1114
Court: Supreme Court of New South Wales, Common Law Division
Date: 26 October 2006
Judge(s): McClellan CJ at CL
Background
The plaintiff faced 34 charges including sexual assault, robbery, obtaining money by deception, and larceny, allegedly committed between January 2002 and April 2004. The charges involved multiple complainants, each of whom had travelled to Sydney after responding to a newspaper advertisement placed by the plaintiff.
At the committal proceedings before Magistrate Haskett, the plaintiff applied under sections 91 and 93 of the Criminal Procedure Act 1986 for 15 complainants to attend for cross-examination. The Director of Public Prosecutions consented to nine complainants attending. The Magistrate refused to direct the remaining six to attend, finding no "substantial reasons" or "special reasons" as required by those provisions.
The plaintiff then brought proceedings in the Supreme Court, seeking to set aside the Magistrate's refusal on the basis that her Honour had erred in law by failing to properly exercise her discretion. The DPP appeared as second defendant opposing the relief sought.
Legal Issues
- Whether the Magistrate erred in law by refusing to direct the six complainants to attend the committal for cross-examination under sections 91 and 93 of the Criminal Procedure Act 1986
- What constitutes "substantial reasons" and "special reasons" within those provisions
- Whether the conclusions the Magistrate reached were open and appropriate on the evidence before her
- Whether the plaintiff's alleged prejudice from the absence of cross-examination at the committal stage justified intervention
- Whether prerogative relief under section 69 of the Supreme Court Act 1970 was appropriate in the circumstances
Decision
McClellan CJ at CL dismissed the summons, finding that the Magistrate had correctly applied the relevant legal principles and that her conclusions were both open and appropriate. The legislative purpose of sections 91 and 93 is to limit the time occupied in committal proceedings and, in the case of section 93, to prevent court processes being used to cause unnecessary distress to victims of violent crime. The threshold of "something special or unusual" in the particular case must be met before a direction to attend can be made, consistent with B v Gould and DPP (1993) 67 A Crim R 297.
His Honour found that the Magistrate had engaged in detailed consideration of the case against the plaintiff before reaching her conclusions. Although some of her reasons were brief, she had correctly identified and applied the relevant principles drawn from the legislation, and had considered whether the matters raised by the plaintiff in relation to each complainant constituted special or substantial reasons. Her conclusions were, in the court's view, both correct and available on the material before her.
On the question of prejudice, the court found that any disadvantage to the plaintiff arose from the fact that complainants would be cross-examined once rather than twice, not from any unusual feature of the proceedings warranting intervention. The striking consistency between the complainants' accounts, including an account from an undercover police officer, was a factor the Magistrate had properly taken into account in reaching her decision. The plaintiff's concerns about anticipated "no bill" applications did not displace this conclusion.
Orders Made
- The summons is dismissed.
- The plaintiff is to pay the second defendant's costs.
Key Takeaways
- Under sections 91 and 93 of the Criminal Procedure Act 1986, something "special or unusual" in the particular case must be present before a magistrate is required to direct a complainant to attend a committal for cross-examination.
- A magistrate's refusal to make such a direction will not constitute an error of law merely because the accused identifies weaknesses or inconsistencies in complainants' statements; those matters can be addressed at trial.
- Committal proceedings are not designed to rehearse the trial, and the legislative scheme expressly limits their scope, particularly to avoid unnecessary distress to victims of violent crime.
- In dismissing the summons, the court confirmed that any disadvantage flowing from the absence of committal cross-examination, such as having one fewer opportunity to test a witness, does not of itself constitute the kind of prejudice that warrants prerogative intervention.
- Brief reasons from a magistrate will not amount to an error of law where the decision reflects genuine engagement with the relevant principles and the conclusions reached are available on the evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 91, 93
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 54(1), 55(3)(a)
- Supreme Court Act 1970 (NSW), s 69
Cases:
- B v Gould and DPP (1993) 67 A Crim R 297
- House v The King (1936) 55 CLR 499
- Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576
- Director of Public Prosecutions v O'Conner [2006] NSWSC 458
- Director of Public Prosecutions v Rainibogi [2003] NSWSC 274
- Tez v Longley (2004) 142 A Crim R 122
- Sim v Magistrate Corbett & Anor [2006] NSWSC 665
- Gianoutsos v Glykis [2006] NSWCCA 137
- Sankey v Whitlam (1977) 1 NSWLR 333
- Waterhouse v Gilmore (1988) 12 NSWLR 271
- Bacon v Rose (1972) 2 NSWLR 793
- Ainger v Coffs Harbour City Council [2005] NSWCA 424
- R v Colby (1995) 84 A Crim R 125
- Downes v Director of Public Prosecutions [2000] NSWSC 1054
- O'Hare v Director of Public Prosecutions [2000] NSWSC 430
- Mileshkin v Commonwealth Director of Public Prosecutions (unreported, NSWSC, 28 May 1998)