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Supreme Court 22 August 2014

Barakat v Director of Public Prosecutions

[2014] NSWSC 1163

Drugs
CRIMINAL LAW JUDICIAL REVIEW APPLICATION TO CROSS EXAMINE A WITNESS AT COMMITTAL REFUSED WHETHER DECISION INHERENTLY WRONG

Citation: Barakat v Director of Public Prosecutions [2014] NSWSC 1163
Court: Supreme Court of New South Wales
Date: 22 August 2014
Judge: Button J

Background

The defendant faced serious drug offence charges alleged to have occurred between June and August 2010. The central prosecution witness was a police handler's informant, referred to in the judgment (and subject to a non-publication order) as AP. The prosecution case also relied heavily on surveillance material, including telephone intercepts and listening device recordings.

Committal proceedings in the Local Court were protracted. The defendant was arrested in December 2010, but the committal hearing proper did not commence until June 2013, nearly two and a half years later. A substantial portion of that delay was attributed to the lawyers acting for the defendant.

In September 2013, the defendant's solicitor applied under s 91 of the Criminal Procedure Act 1986 (NSW) for leave to cross-examine Detective Richards, the informant's police "handler," at the committal. The Magistrate refused that application. The defendant then sought prerogative relief in the Supreme Court, arguing the Magistrate had made an error of law on the face of the record.

  • Whether the Magistrate's refusal to grant a further s 91 application to cross-examine Detective Richards constituted an error of law on the face of the record.
  • Whether the result of the Magistrate's decision was inherently wrong, indicating some underlying legal error.
  • Whether the Magistrate gave excessive weight to the issue of delay, thereby allowing an irrelevant or extraneous matter to improperly influence the decision.
  • Whether an extension of time to commence Supreme Court proceedings should be granted, given the originating process was filed 18 days late.

Decision

Button J first addressed the procedural issue of the late filing. The originating process was 18 days beyond the time permitted under r 59.10 of the Uniform Civil Procedure Rules. His Honour found the explanations offered, including difficulties obtaining transcripts, delays in securing legal aid, and the interposition of the long vacation, were capable of accounting for the delay. The extension of time was granted.

On the substantive challenge, the defendant argued under the principles in House v The King (1936) 55 CLR 499 that the Magistrate's decision was either inherently wrong or infected by excessive reliance on an irrelevant matter, namely delay. Button J examined both limbs. His Honour found that the Magistrate had provided a concise but adequate summary of the relevant circumstances and legal principles before reaching her conclusion, and that the decision was not inherently wrong.

On the delay point, the defendant's counsel conceded that delay could legitimately be a relevant consideration in the s 91(3) "interests of justice" analysis, though he argued it had been given inappropriate weight. Button J rejected that argument. Delay featured prominently in the prosecutor's submissions below, but his Honour found it did not dominate the Magistrate's judgment. The discussion of delay appeared only after the Magistrate had addressed the applicable principles and circumstances, and was not expressed in terms suggesting undue emphasis.

Finding that neither asserted error of law on the face of the record had been established, Button J dismissed the substantive portions of the summons and ordered costs against the defendant.

Orders Made

  • An extension of time to commence proceedings was granted.
  • The balance of the further amended summons was dismissed.
  • The plaintiff (the defendant in the criminal proceedings) was ordered to pay the costs of the first defendant, the Director of Public Prosecutions of New South Wales.

Key Takeaways

  • Under s 91(3) of the Criminal Procedure Act 1986 (NSW), a Magistrate may permit a witness to attend a committal to give oral evidence only where satisfied there are "substantial reasons why, in the interests of justice" the witness should attend. The threshold is not easily met by a further application where one has already been granted.
  • Delay in the criminal process is a legitimate consideration in the s 91(3) interests of justice analysis, as confirmed by Button J with reference to the principles in Sim v Magistrate Corbett [2006] NSWSC 665. It is not, however, a determinative factor.
  • No error was established merely because delay featured in the Magistrate's reasoning. Button J found the issue was not expressed with sufficient force in the judgment to indicate it had been given undue weight.
  • Prerogative relief on the ground of error of law on the face of the record, framed through the House v The King principles, requires a defendant to demonstrate either an inherently wrong result or that an extraneous matter improperly guided the decision. Both limbs were examined and rejected here.
  • A filing delay of 18 days in bringing Supreme Court review proceedings, explained by transcript delays, legal aid difficulties, and court vacation, was sufficient to warrant an extension of time under r 59.10 of the Uniform Civil Procedure Rules.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 91
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
- Uniform Civil Procedure Rules, r 59.10
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Lee v Queen [2014] HCA 20; 88 ALJR 656
- Losurdo v Director of Public Prosecutions (NSW) (1998) 101 A Crim R 162
- McKirdy v McCosker [2002] NSWSC 197; 127 A Crim R 217
- Sim v Magistrate Corbett [2006] NSWSC 665