Medich v Local Court of NSW (No 2)

1. [1]

   HIS HONOUR: The plaintiff seeks intervention by this Court in respect of committal proceedings which are currently being heard in the Central Local Court. The plaintiff takes issue with a magistrate’s decision not to allow a prosecution witness, Bassam Safetli, to be called for cross-examination.

2. [2]

   The plaintiff is charged, inter alia, with the murder of Michael McGurk at Cremorne on 3 September 2009.

3. [3]

   The plaintiff was first charged on 26 October 2010.

4. [4]

   The committal hearing commenced before her Honour Magistrate Stevenson on 6 August 2013. As things presently stand, the calling of prosecution witnesses for cross-examination has concluded and the matter has been adjourned to 18 September 2013.

5. [5]

   There is a co-defendant in the committal proceedings, Christopher Estephan.

6. [6]

   Others alleged by the prosecution to have been involved in one form or another in the murder of Mr McGurk are Fortunato (“Lucky”) Gattellari, Senad Kaminic and Haissam Safetli. They have each pleaded guilty and have been sentenced by Latham J: R v Safetli [2013] NSWSC 1096; R v Gattellari; R v Kaminic [2013] NSWSC 1097. They each received reductions of their sentence on account of assistance they provided to the authorities. They have each given evidence for the prosecution in the committal hearing.

7. [7]

   The first defendant is the Local Court of New South Wales and a submitting appearance has been filed. The second, and active, defendant is the Director of Public Prosecutions (NSW).

Committal hearing procedure

1. [8]

   Generally speaking, committal hearings proceed by way of tender of written statements of prosecution witnesses pursuant to Ch 3 Pt 2 Div 3 of the Criminal Procedure Act 1986 (NSW). There is provision in s 91 for witnesses who have made a written statement being directed to attend to give oral evidence. The provisions of that section that are presently relevant may be summarised:

2. [9]

   Section 92 makes certain procedural provisions in relation to an accused person applying to have a witness attend. Notice must be given to the prosecutor and there are time constraints in relation to this. It is the agreed position of the parties that s 92 should not be seen as a bar to the plaintiff’s application in the circumstances of the present case. Similarly, although the statement of the witness in question has already been admitted in evidence, the prosecution does not rely upon the provision in s 91(3A). That is understandable, given that it has been on notice for quite some time of the desire of the plaintiff to have the witness directed to attend for cross-examination.

The decision and reasons of the magistrate

1. [10]

   The impugned decision of the magistrate is her refusal to grant an application that she direct that a witness attend to give evidence at the committal hearing. The hearing had commenced some weeks earlier but the application was first foreshadowed to the magistrate on 29 August and formally made on 30 August 2013.

2. [11]

   The magistrate did not give a formal judgment with reasons for her decision. In stating that the “application is rejected” her Honour said “the reasons are on the transcript” (T1150.36). It is necessary, then, to recount in some detail the discussion that took place on 29 and 30 August.

An application for a direction that a witness attend foreshadowed

1. [12]

   On the 17th day of the committal hearing, 29 August 2013, senior counsel for the plaintiff, Mr Terracini, indicated that an application would be made for a prosecution witness to be called. He said that this was “because of the evidence that has fallen from witnesses”. The witness was said to be compellable; “his statement is there”; and the application could be made either in writing or orally. (Redacted transcript (“RT”) 1115)

2. [13]

   The magistrate responded to the effect that she would be “happy” to hear and consider such an application. The prosecutor, however, said that she would appreciate an opportunity to speak to her Honour in chambers about it. (Clearly, this was proposed to be a conversation including counsel for the plaintiff.) Further discussion about this ensued. (RT1115-6)

3. [14]

   The hearing was then concerned with other aspects. The issue was further discussed later in the day. The prosecutor referred to the fact that no notice pursuant to s 92 had been given by either accused. Mr Terracini acknowledged that “we have to do the formal parts so we can point to the issues”. The prosecutor queried the “substantial reasons why, in the interests of justice” the witness should be required in respect of the case concerning the plaintiff. Ultimately the proceedings were adjourned to the following day. (RT1140-1)

Application made

1. [15]

   SUPPRESSED

2. [16]

   SUPPRESSED

3. [17]

   SUPPRESSED

4. [18]

   SUPPRESSED

5. [19]

   SUPPRESSED

6. [20]

   SUPPRESSED

7. [21]

   SUPPRESSED

8. [22]

   SUPPRESSED

9. [23]

   SUPPRESSED

10. [24]

    SUPPRESSED

11. [25]

    SUPPRESSED

12. [26]

    SUPPRESSED

13. [27]

    SUPPRESSED

14. [28]

    SUPPRESSED

Relief sought

1. [29]

   The plaintiff seeks the following relief:

Submissions for the plaintiff

1. [30]

   It was contended in submissions to this Court that the magistrate fell into error, which could be characterised as either jurisdictional error or error of law on the face of the record in failing to consider or evaluate:

2. [31]

   In short, it was submitted that the magistrate did not have regard to the relevant statutory criteria and ostensibly declined to exercise the jurisdiction conferred upon her under the Act: see Waterhouse v Gilmore (1988) 12 NSWLR 270 at 276.

3. [32]

   It was also submitted that the magistrate was wrong to have regard to what was contended to be an irrelevant consideration. [SUPPRESSED]

4. [33]

   SUPPRESSED

5. [34]

   SUPPRESSED

6. [35]

   SUPPRESSED

7. [36]

   A critical aspect of the plaintiff’s case concerns a question as to when a plan to murder the deceased arose. It was contended that the state of the evidence now, after a number of important prosecution witnesses have been cross-examined, is that it may well be that such a plan was the idea of, and was developed by, people other than the plaintiff at a time prior to when the Crown alleges the plaintiff had a motive to have the deceased killed.

8. [37]

   In short, I was told that there is evidence to the effect that the witness, Bassam Safetli, and his brother, Hassaim Safetli, “hatched” a plan between themselves, in the absence of and without the knowledge of the plaintiff (T12 on 16.9.13). In the “Defence Case Statement for Purposes of Determination of Committal Witnesses” there is a summary of the evidence in the prosecution brief on this topic and it says that, according to Senad Kaminic, Lucky Gattellari’s driver and assistant, the proposal was advanced by Hassaim Safetli to Gattellari. Evidence to this effect, I was told, is already before the magistrate (T11.46).

9. [38]

   There were other aspects of the evidence that were referred to in the course of submissions in this Court (T11-15), evidence that was already before the magistrate, but the ultimate submission, as I understand it, was that allowing an opportunity for the plaintiff to cross-examine the witness would further enhance a prospect that he would be discharged at the conclusion of the committal hearing as opposed to being committed to stand trial.

10. [39]

    SUPPRESSED

11. [40]

    In written submissions in reply to those of the Director, it was submitted that there was no “fragmentation” of the proceedings and that this should not be a basis upon which this Court would decline the relief sought. The hearing before the magistrate has not been delayed at all by the bringing of the present proceedings. The summons was filed on 4 September and listed for hearing on 16 September. The committal hearing continued until last Wednesday, 11 September, and is to resume on 18 September, but the week’s adjournment had nothing to do with the proceedings in this Court. In oral submissions, it was conceded that interference in committal proceedings by taking ancillary proceedings elsewhere is not something that is lightly entertained.

12. [41]

    It was also conceded, orally, that as a matter of general principle there is a discretion, as the written submissions for the Director set out, as to whether this Court should decline to grant the relief sought, notwithstanding error being established. In the written submissions, counsel for the plaintiff essentially reiterated: (a) the asserted importance of having the witness give evidence in the committal proceedings; and (b) the error of the magistrate in having regard to [SUPPRESSED]

13. [42]

    SUPPRESSED

Principles in relation to the relief sought

1. [43]

   The submissions for the Director correctly pointed out that an order in the nature of certiorari (prayer 2 of the relief sought) may be made where there has been established, inter alia, error of law on the face of the record, jurisdictional error, or breach of procedural fairness: Craig v State of South Australia (1995) 184 CLR 163 at 175-6; Kirk v Industrial Court of New South Wales & Anor [2010] HCA 1; (2010) 239 CLR 531 at 567; [85].

2. [44]

   Jurisdictional error was described in Craig as follows (at 177-8):

3. [45]

   The difficulty with the distinction between jurisdictional error and error within jurisdiction was referred to by Hayne J in Re Refugee Review Tribunal and Anor; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 141; [163]:

4. [46]

   The plaintiff also seeks declaratory relief (prayer 1) and relief in the nature of mandamus (prayer 4). In Director of Public Prosecutions v O’Conner [2006] NSWSC 458; (2006) 181 A Crim R 294, Johnson J provided a convenient collection of principles emerging from a number of authorities concerned with these forms of relief:

Principles in relation to s 91 of the Criminal Procedure Act

1. [47]

   As noted earlier, it was for the plaintiff to persuade the magistrate that there were “substantial reasons why, in the interests of justice, the witness should attend”: s 91(3). Relevant matters of principle relating to this concept include the following:

Resolution

1. [48]

   The case for the plaintiff can be summarised in a single, albeit multi-component, proposition: the magistrate failed to exercise, or erred in the exercise of, her jurisdiction to determine whether she should direct that Bassam Safetli attend to give evidence at the committal hearing by (a) failing to consider at all whether there were “substantial reasons why, in the interests of justice, the witness should attend” and (b) by instead, determining the question on the basis of an irrelevant consideration.

2. [49]

   In my view, if that proposition is not made good, the plaintiff must fail as the other arguments advanced by the plaintiff are insufficient to warrant the interference of this Court. If the proposition is made good, then it is a matter to determine whether intervention is warranted in the Court’s discretion.

3. [50]

   Some of the arguments presented for the plaintiff were more directed to the merits of the plaintiff’s argument that a s 91 direction should be given in relation to the witness. It is inappropriate in proceedings of this nature for there to be any consideration of the merits, let alone a determination of them.

4. [51]

   Another argument for the plaintiff that can be put to one side is the complaint of there having been a denial of procedural fairness. I do not accept that there was such a denial. I accept that the magistrate did express a conclusion at one point (T1148.32), “I’m not having him called”. But the discussion of the issue continued beyond that point. At no stage did her Honour indicate that she would not hear further from the plaintiff’s counsel.

5. [52]

   In the following paragraphs I set out matters that appear to be relevant to the primary proposition of the plaintiff.

6. [53]

   The magistrate is a very experienced judicial officer. She has probably presided over more committal hearings and determined more questions arising under s 91 of the Criminal Procedure Act than she could possibly remember. I accept also that the issue was in the nature of “bread and butter” in the daily life of a Local Court magistrate. I am not prepared to accept that her Honour was ignorant of the statutory provisions and the general law principles relating to s 91.

7. [54]

   At the time of the application in respect of the witness Bassam Safetli, her Honour had been presiding over the committal hearing concerning the plaintiff and his co-defendant for over three weeks.

8. [55]

   During the course of the hearing the magistrate had no doubt read a good deal of material. The prosecution brief of evidence tendered to her apparently comprises some 87 volumes. Her Honour had the benefit of a very detailed Crown Case Statement (65 pages; 206 paragraphs). She had also been provided with a relatively detailed document entitled “Defence Case Statement for Purposes of Determination of Committal Witnesses” (12 pages of small font text in single line spacing). [SUPPRESSED]

9. [56]

   Her Honour had also heard considerable cross-examination of prosecution witnesses which included matters relevant to involvement of Bassam Safetli.

10. [57]

    For the above reasons, there can be little doubt that the magistrate was aware of the nature of both the prosecution and defence cases and must have had an appreciation of the significance of the evidence of Bassam Safetli to both sides. I accept that her reasons do not advert to this, but the conclusion is inescapable.

11. [58]

    The Crown places little reliance upon the evidence of Bassam Safetli in the case concerning the plaintiff. His evidence is of greater relevance (to the Crown) in the case concerning the co-defendant.

12. [59]

    SUPPRESSED

13. [60]

    SUPPRESSED

14. [61]

    SUPPRESSED

15. [62]

    SUPPRESSED

16. [63]

    SUPPRESSED

17. [64]

    SUPPRESSED

18. [65]

    The fundamental objective of committal proceedings of facilitating a fair trial, should a trial eventuate, must be borne in mind. In this regard, the availability, within the discretion of the trial judge, of an opportunity to cross-examine witnesses who were not called at committal is significant.

19. [66]

    Finally, and less significantly, from the description provided by counsel for the plaintiff of the proposed cross-examination of Bassam Safetli, it does not appear that the evidence could be regarded as crucial to the defence of their client. I was not provided with the entire brief of evidence and the entire transcript of the committal proceedings to date. Given the volume of it, it would have been neither practical nor appropriate to tender such material in these proceedings. But from the submissions that were made, it seems that there is a considerable body of evidence already before the magistrate on the topic described as the most significant of those for which cross-examination was sought.

Adequacy of reasons

1. [67]

   A final point to deal with before expressing my conclusion is the complaint on behalf of the plaintiff as to the adequacy of reasons given by the magistrate.

2. [68]

   The first point to note is that it is not the expectation that judgments will be given by magistrates on procedural matters in the Local Court with all of the formality and detail of judgments delivered in this Court. The notoriously heavy workload of magistrates simply does not permit such a luxury. In Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at 407; [15], Johnson J bore in mind that he was dealing with an “unedited and unpunctuated record of ex tempore remarks in a busy Magistrate’s Court”. He added:

3. [69]

   But that does not mean that there are no standards as to the adequacy of reasons given in such an environment. Providing sufficient reasons is an important judicial task, even in the Local Court, as Johnson J went on to point out (at 408; [18]-[19]).

4. [70]

   It is unfortunate that there was not a little more said by the magistrate in the present case to make it clear and beyond argument that she had applied herself to the question she was called upon to decide. Nothing elaborate was required; a few sentences would have sufficed. In the end, nothing turns on it, but it has made the task asked of this Court more difficult.

Conclusion

1. [71]

   I am satisfied on the basis of what can be gleaned from the transcript, and for the reasons given earlier, that her Honour did firmly have in mind the question that was posed for her resolution: whether there were “substantial reasons why, in the interests of justice, the witness should attend”. I am also satisfied that the manner in which she resolved that question was open to her. No relevant error has been established.

2. [72]

   Accordingly, the plaintiff has failed in establishing an entitlement to any of the forms of relief sought in the summons.

3. [73]

   Both parties sought costs in the event that they were successful. Neither party made submissions as to why an order should not be made in the event they were unsuccessful. In those circumstances I propose that the plaintiff pay the costs of the second defendant.