Peter James Agnew v Thacker and Commissioner of Police

After the applicant was charged with rape and indecent assault, his solicitors wrote to the prosecution disclosing proposed matters for the cross-examination of certain witnesses at the applicant’s committal hearing. The prosecution used that information to obtain addendum witness statements. Despite the applicant’s protest, the magistrate received the addendum statements and subsequently determined to refuse an application by the applicant to have the witnesses made available for cross-examination at his committal. Holmes CJ dismissed the application for review of the Magistrate’s decision. In particular, her Honour explained that, if the defence provides information to support an application to cross-examine witnesses at a committal hearing pursuant to s 110B(3) Justices Act 1866, there is no legal basis for restricting the use of that information.

Holmes CJ

28 June 2019

Background 

The applicant was charged with one count of rape and five counts of indecent assault, and proposed to have particular witnesses cross-examined at his committal hearing. [1]. To that end, the applicant’s solicitors wrote to the prosecution setting out, inter alia, the topics upon which they proposed to cross-examine each of the witnesses, and purportedly requiring that the information disclosed in their letter not be divulged to any witness or used for the purpose of obtaining addendum statements. [6]–[7].

After the prosecution advised that it would not consent to the proposed cross-examination, the applicant applied for a direction that the witnesses be made available for examination pursuant to s 83A(5AA) Justices Act 1886. [18]. Notwithstanding the terms of the letter sent by the applicant’s solicitors, the prosecution later used the information disclosed on the applicant’s behalf to obtain addendum statements from the relevant witnesses, in turn providing those statements to the applicant. [18].

Upon the hearing of the application for a direction to have the witnesses made available, the applicant contended that, because of the prosecution’s actions, the magistrate should not have regard to the addendum statements, and that the application should otherwise be granted. [23]–[24], [29]. The magistrate instead determined to receive the addendum statements, and refused the application. [24], [47]. The applicant applied for judicial review of the magistrates’ decision to receive the addendum statements, and the decision to refuse the application to have the witnesses made available for cross-examination. [1].

Receipt of the addendum statements

Holmes CJ noted that although the magistrates’ “decision” to receive the addendum statements could not be construed as a decision “made ... under an enactment” for the purposes of it being reviewed, it may have otherwise have been reviewable conduct within the meaning in s 6 Judicial Review Act 1991. [26]. However, while the information in the applicant’s letter had been disclosed for a specific purpose, nothing in the Justices Act 1886 prevented the use of that information to obtain further statements; rather, the Act supported such a streamlining of process. [32]–[39].

Her Honour considered that it was difficult for the magistrate to determine the issue of whether a witness ought to be called for examination upon their statements without having received the statements in question, and that, as such, the magistrate in fact had to receive the statements. [40]. Her Honour also observed that there was no legal basis for the applicant to place a limit on the way in which the information disclosed could be used. [41].

Refusal of the application to cross-examine

Holmes CJ found that none of the applicant’s arguments regarding the refusal, including with regard to the sufficiency of reasons; findings concerning the clarity of matters for examination, and the potential for collusion between witnesses, had substance in the circumstances. [51]–[54].

Observations and orders

Holmes CJ went on to observe that although the applicant had not established a legal barrier to the course of action taken by the prosecution in this case, “it would be unfortunate, and indeed unethical, if prosecutors were to adopt a default position of reflexively denying [such] applications”. [55]. In the result, the application for review was refused. [56].

B McNamara