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4
Supreme Court 12 May 2006

Director of Public Prosecutions (NSW) v O’Conner

[2006] NSWSC 458

Also reported as 181 A Crim R 294
Sexual offencesTheft & propertyPublic order & justice offences
CRIMINAL LAW COMMITTAL PROCEEDINGS WHETHER DENIAL OF PROCEDURAL FAIRNESS SPECIAL REASONS TEST ADEQUACY OF REASONS FOR DIRECTION

Citation: Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458
Court: Supreme Court of New South Wales, Common Law Division
Date: 12 May 2006
Judge(s): Johnson J

Background

The accused faced seven serious charges arising from an alleged aggravated sexual assault and armed robbery at a motel in Figtree in May 2005. The complainant, referred to as V, was a sex worker. The accused was not arrested until six months after the alleged offences and committal proceedings were underway in the Goulburn Local Court.

At the committal proceedings on 8 February 2006, the Magistrate made a direction under ss.91 and 93 of the Criminal Procedure Act 1986 requiring V to attend and give evidence. This type of direction is available where "special reasons" exist for requiring a prosecution witness to appear in person at a committal, rather than relying solely on their written statement.

The Director of Public Prosecutions challenged that direction in the Supreme Court. The DPP contended that the Magistrate had denied procedural fairness to the prosecution, failed to properly exercise jurisdiction, and gave legally inadequate reasons when making the direction.

  • Whether the Magistrate denied the prosecution procedural fairness by refusing an adjournment of the ss.91 and 93 application
  • Whether the Magistrate actually or constructively failed to exercise jurisdiction when determining the ss.91 and 93 application
  • Whether the "special reasons" test under ss.91 and 93 of the Criminal Procedure Act 1986 was properly applied
  • What legal status a Local Court Practice Note holds in relation to committal proceedings
  • Whether the Magistrate's reasons for the direction were legally adequate
  • Whether relief in the nature of mandamus was available under s.69 of the Supreme Court Act 1970, and whether a statutory appeal avenue was also open

Decision

Johnson J found that the direction made on 8 February 2006 was legally flawed and should be quashed. The judgment identified significant deficiencies in the way the Magistrate approached the ss.91 and 93 application, including failures going to procedural fairness and the proper exercise of jurisdiction.

The Court accepted that the prosecution had been denied a proper opportunity to be heard before the direction was made. The refusal of an adjournment, in circumstances where the DPP had not been given adequate notice or opportunity to respond to the application, amounted to a denial of procedural fairness.

Johnson J also found that the Magistrate had either actually or constructively failed to exercise jurisdiction correctly when determining whether the "special reasons" threshold for requiring V's attendance had been satisfied. The reasons given by the Magistrate for the direction were found to be legally inadequate, in that they did not demonstrate a proper application of the relevant statutory test.

The Court rejected a submission that the identified deficiencies could be remedied during cross-examination of V at the committal itself, under the Magistrate's power to terminate cross-examination under s.69 of the Criminal Procedure Act 1986. Johnson J held that a proper and lawful ss.91 and 93 application needed to be conducted from the outset, and remitted the matter to the Goulburn Local Court accordingly.

Orders Made

  • The direction made by the Magistrate on 8 February 2006 under ss.91 and 93 of the Criminal Procedure Act 1986 requiring V to attend to give evidence at the committal proceedings was quashed.
  • The matter was remitted to the Goulburn Local Court to be heard and determined according to law.
  • The First Defendant was ordered to pay the Plaintiff's costs of and incidental to the Summons.
  • The First Defendant was granted a certificate under s.6 of the Suitors' Fund Act 1951.
  • The stay of the committal proceedings made on 1 May 2006 was dissolved.
  • Orders were entered forthwith.

Key Takeaways

  • Under ss.91 and 93 of the Criminal Procedure Act 1986, a Magistrate must properly apply the "special reasons" test before directing a prosecution witness to attend and give evidence at a committal; a failure to do so constitutes a failure to exercise jurisdiction correctly.
  • Denying a prosecution party a reasonable opportunity to be heard before a direction is made under ss.91 and 93 can amount to a denial of procedural fairness sufficient to ground relief in the nature of mandamus.
  • Legally adequate reasons are required when a Magistrate makes a direction under ss.91 and 93; reasons that do not demonstrate engagement with the statutory test will not suffice.
  • In dismissing the argument that procedural deficiencies could be cured during cross-examination at the committal, the Supreme Court confirmed that jurisdictional failures at the ss.91 and 93 stage require the application to be properly reconsidered, not patched up later in the proceedings.
  • Relief in the nature of mandamus under s.69 of the Supreme Court Act 1970 was available in this context, and the Court did not find it necessary to also determine whether a statutory appeal avenue existed under the Crimes (Local Courts Appeal and Review) Act 2001.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss.62, 64, 69, 91, 93
- Supreme Court Act 1970 (NSW), s.69
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss.57, 59
- Crimes Act 1900 (NSW), ss.61J(1), 97(1)
- Suitors' Fund Act 1951 (NSW), s.6
- Local Courts Act 1982 (NSW)
- Justices Act 1902 (NSW)

Key Cases:
- Waterhouse v Gilmore (1988) 12 NSWLR 271
- Sankey v Whitlam (1978) 142 CLR 1
- Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397
- Lawler v Johnson (2002) 56 NSWLR 1
- Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Meagher v Stephenson (1993) 30 NSWLR 736
- Director of Public Prosecutions v Scheibel (2004) 145 A Crim R 576
- Tez v Longley (2004) 142 A Crim R 122
- McKirdy v McCosker (2002) 127 A Crim R 217
- Boumelhem v Director of Public Prosecutions (2002) 135 A Crim R 454
- B v Gould (1993) 67 A Crim R 297
- Wong v Director of Public Prosecutions [2005] NSWSC 129
- Blazevski v Judges of the District Court of NSW (1992) 62 ALD 197