Citation: Sim v Magistrate Corbett & Anor [2006] NSWSC 665
Court: Supreme Court of New South Wales, Common Law Division
Date: 12 July 2006
Judge(s): Whealy J
Background
The appellant was a prison officer charged under s 319 of the Crimes Act 1900 with threatening an inmate, Abdullah Nachar, with injury while in custody, intending to pervert the course of justice. The charge arose from an incident at Silverwater's MRRC on 4 August 2005, following an assault on a prison officer and a subsequent alleged retaliatory assault on Nachar.
During committal proceedings in the Local Court, the appellant applied under s 91 of the Criminal Procedure Act 1986 for directions that five prosecution witnesses attend to give oral evidence. The magistrate granted the direction in relation to Nachar but refused it in relation to the remaining four witnesses. The appellant challenged that refusal in the Supreme Court, focusing on three of the witnesses: Waters, Dally and Harvey.
The magistrate entered a submitting appearance in the Supreme Court proceedings, and the Director of Public Prosecutions took up the contest as the second defendant.
Legal Issues
- Whether the magistrate properly applied the "substantial reasons" test under s 91(3) of the Criminal Procedure Act 1986 when refusing to direct the attendance of witnesses Waters, Dally and Harvey.
- Whether the magistrate's inadequate or absent reasons for refusing the directions amounted to a constructive failure to exercise jurisdiction.
- Whether relief in the nature of mandamus (under s 69 of the Supreme Court Act 1970) was available to compel the magistrate to reconsider the applications according to law.
- Whether, as an alternative basis, the refusal to give directions constituted an order "against" the appellant so as to ground an appeal under s 53 of the Crimes (Local Courts Appeal & Review) Act 2001.
Decision
Whealy J found that the magistrate had failed to give adequate reasons, or any sufficient reasons, for refusing to direct the attendance of the three witnesses. The judgment identified that the magistrate's reasons, to the extent they existed, did not properly engage with the question of whether substantial reasons existed in the interests of justice for the witnesses to attend and give oral evidence.
That failure, his Honour held, amounted to a constructive failure to exercise jurisdiction. The authorities confirmed that mandamus-type relief is available not to correct every error of law, but where a tribunal has misunderstood the nature of its jurisdiction and thereby failed to apply itself to the question the law required it to address. The magistrate's approach in this case fell into that category.
Whealy J concluded that the magistrate had, on the material before her, failed to reach a conclusion properly open to her, particularly given the absence of adequate reasons. This justified an order requiring her to reconsider the applications according to law. His Honour found it unnecessary to determine the subsidiary question of whether the refusal constituted an order "against" the appellant for the purposes of the appeal provision, though he noted it would seem an odd result if it did not.
Orders Made
- An order under s 69 of the Supreme Court Act 1970 directing the magistrate to consider, according to law, applications that particular persons be directed to attend committal proceedings to give oral evidence.
- An order quashing the magistrate's orders of 16 March 2006 refusing to direct the attendance of the relevant witnesses.
- Remitter of the matter to the magistrate to deal with the further conduct of the committal in accordance with the Supreme Court's reasons.
- The second defendant (the Director of Public Prosecutions) to pay the appellant's costs.
Key Takeaways
- Under s 91(3) of the Criminal Procedure Act 1986, a magistrate may only direct a witness to attend committal proceedings if satisfied there are substantial reasons why, in the interests of justice, the witness should give oral evidence. Failing to properly engage with that question can constitute a constructive failure to exercise jurisdiction.
- A constructive failure to exercise jurisdiction arises where a tribunal misunderstands the nature of its jurisdiction and fails to apply itself to the question the law requires it to decide. This is distinct from a mere factual or discretionary error, which would not attract relief in the nature of mandamus.
- Inadequate or absent reasons for refusing a s 91 direction can themselves evidence a failure to exercise jurisdiction properly, particularly where the material before the decision-maker pointed clearly towards the existence of substantial reasons.
- Relief under s 69 of the Supreme Court Act 1970 was the appropriate vehicle in this case. The court left open whether a refusal to give a witness attendance direction constitutes an order "against" an accused for the purposes of s 53 of the Crimes (Local Courts Appeal & Review) Act 2001, though Whealy J expressed scepticism that it would not.
- Remitter to the original decision-maker to reconsider according to law, rather than substitution of the Supreme Court's own decision, was the appropriate remedy in these circumstances.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 91
- Crimes Act 1900 (NSW), s 319
- Supreme Court Act 1970 (NSW), s 69
- Crimes (Local Courts Appeal & Review) Act 2001 (NSW), s 53
- Justice Act 1902 (NSW)
Cases
- DPP v Losurdo (1998) 44 NSWLR 618
- Hanna v Kearney & Anor [1998] NSWSC 227
- Leahy v Price & Anor (Adams J, unreported, 28 September 1988)
- Losurdo v DPP & Anor (Hidden J, unreported, 10 March 1998)
- McKirdy v McCosker [2002] 127 A Crim R 217
- DPP (NSW) v O'Connor [2006] NSWSC 458
- Acuthan v Coates (1986) 6 NSWLR 472
- Cross v McHugh (1974) 1 NSWLR 500
- Manning v Thompson (1979) 1 NSWLR 384