Citation: Abdel-Hady v Magistrate Freund & Anor [2007] NSWSC 1247
Court: Supreme Court of New South Wales, Common Law Division (Administrative Law List)
Date: 2 November 2007
Judge(s): Rothman J
Background
The accused faced charges of an act of indecency and two counts of unlawfully causing alleged victims to take a stupefying drug with intent to commit an indictable offence. The matter came before a Local Court magistrate for committal proceedings, with the DPP seeking to commit the accused for trial in the District Court.
Under the committal procedure then in force in New South Wales, witness statements were generally used in place of oral evidence unless the accused successfully applied for particular witnesses to attend for cross-examination. The accused applied for eight witnesses to attend. The Crown consented to two, and the magistrate directed one further witness to attend. The magistrate declined to direct the attendance of the remaining three witnesses: Shane McNally, Leyla Marcos, and Catriona Gilchrist.
Those three witnesses had given evidence about the conduct of the two complainants at a bar on the night in question and about a complaint conversation that occurred the following day. The accused challenged the magistrate's refusal, seeking relief in the Supreme Court by way of certiorari to quash the decision and mandamus to compel reconsideration.
Legal Issues
- Whether the magistrate's reasons for declining to direct the attendance of the three witnesses were sufficient under section 91 of the Criminal Procedure Act 1986 (NSW)
- Whether the magistrate was required to take into account the potential effect on the subsequent trial when deciding whether to direct witness attendance at committal
- Whether failure to consider that effect constituted an error of law warranting intervention by the Supreme Court
Decision
Rothman J found that the magistrate's reasoning did not disclose a sufficiently transparent process to explain the conclusion reached. The decision expressed a result that appeared obvious to the magistrate but did not reveal the steps by which that conclusion was reached. This fell short of the requirement to give adequate reasons for declining to direct witness attendance.
More critically, the magistrate's decision did not demonstrate that she had turned her mind to the implications for the eventual trial of not requiring the three witnesses to attend at committal. Rothman J held that such considerations are a relevant circumstance that a magistrate must take into account when exercising the discretion under section 91. Failing to do so constituted an error of law.
On the question of the complainants' own attendance, Rothman J noted that no good reason had been shown to require alleged victims to give evidence more than once, and that cross-examination on credit would be more effective at trial than at committal, particularly given that the complainants had admittedly hazy recollections. Accordingly, the refusal to direct the complainants' attendance was not disturbed.
The magistrate's decision regarding McNally, Marcos, and Gilchrist was quashed, and the matter was remitted to the Local Court to be reconsidered according to law.
Orders Made
- The magistrate's decision declining to direct Shane McNally, Leyla Marcos, and Catriona Gilchrist to attend to give oral evidence at the committal hearing was quashed.
- The proceedings were remitted to the Local Court to be heard and determined according to law (pursuant to section 69 of the Supreme Court Act 1970 (NSW)).
- Any existing stay of the committal proceedings was dissolved.
- Orders were entered forthwith.
- The parties were granted liberty to apply on the question of costs.
Key Takeaways
- Under section 91 of the Criminal Procedure Act 1986 (NSW), a magistrate deciding whether to direct a witness to attend for cross-examination at committal must give reasons that disclose a transparent and discernible process of reasoning, not merely state a conclusion.
- Failure to consider the effect that declining attendance may have on a subsequent trial is a failure to take into account a relevant circumstance, and constitutes an error of law sufficient to ground Supreme Court intervention.
- A decision that contains insufficient reasons or omits consideration of a legally relevant factor strikes at the heart of the discretionary process being undertaken, not merely at its outcome.
- Alleged victims should not ordinarily be compelled to give evidence at committal as well as trial unless substantial reasons exist for requiring their attendance at the earlier stage.
- Where other witnesses may give evidence of versions differing from those already recorded in victim statements, the cross-examination of those witnesses at committal may be more appropriately directed at those witnesses rather than at the victims themselves.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), particularly section 91
- Supreme Court Act 1970 (NSW), section 69
- Crimes (Local Court Appeal and Review) Act 2001 (NSW)
Cases cited:
- B v Gould (1993) 67 A Crim R 297
- DPP v O'Conner [2006] NSWSC 458
- Kennedy v R (1997) 94 A Crim R 341
- Losurdo v DPP (1998) 44 NSWLR 618
- Sankey v Whitlam (1978) 142 CLR 1
- Waterhouse v Gilmore (1988) 12 NSWLR 270
- Commissioner for Superannuation v Scott (1987) 13 FCR 404
- Tillmanns Butcheries v AMIEU (1979) 42 FLR 331
- Various other procedural and administrative law authorities listed in the judgment