Archer v Police

[2011] QMC 54

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Archer v Police [2011] QMC 54

PARTIES:

BRENDAN JAMES ARCHER

(applicant)

v

POLICE

(respondent)

FILE NO/S:

MAG91848/11(2)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross-examine a witness in a committal proceeding

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

14 December 2011

DELIVERED AT:

Southport

HEARING DATE:

14 December 2011

MAGISTRATE:

Costanzo JJ

ORDER:

Application granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - interests of justice

Justices Act 1886 (Qld), s 83A(5AA), s 110B

COUNSEL:

JG Buckland for applicant

DRP Bettany (sergeant) for respondent

SOLICITORS:

Buckland Allen Criminal Lawyers for applicant

Respondent on own behalf

The Application

1. I have before me an application to cross-examine one witness, a Dr Wen-Shan Soong. The application is made pursuant to section 83A of the Justices Act 1886, and particularly under subsection (5)(aa).

1. Brendan James Archer is facing one charge that on 29 May 2011 at Surfers Paradise in the State of Queensland he unlawfully did grievous bodily harm to Brae Thomas Wheildon.

1. The doctor in question is the neurological registrar at the Gold Coast Hospital, where the victim of the alleged offence was treated, but he was treated by other doctors. The doctor was not the treating physician.

1. Dr Soong has gone from medical records only, to opine as follows, as stated in his latest addendum statement:

“We believe that Mr Wheildon had made a gradual recovery from his injury, and it would be reasonable to expect that Mr Wheildon will have no permanent neurological deficit as a result of the alleged assault. Having said this, an injury in his case had the potential to be serious or life‑threatening should he have not received any treatment; and Mr Wheildon has been very fortunate in his recovery from this injury. The purported mechanism of his injury is consistent with the clinical and radiological findings, and the effect of such an injury would constitute grievous bodily harm.”

Relevant law

1. The definition of ‘grievous bodily harm’ appears in section 1 of the Queensland Criminal Code. Under that section, ‘grievous bodily harm’ means

(a) “the loss of a distinct part or organ of the body”, or

(b) “serious disfigurement”, or

(c) - and perhaps most relevantly here – “any bodily injury of such a nature that if left untreated, would endanger, or be likely to endanger life, or cause, or be likely to cause permanent injury to health, whether or not treatment is, or could have been, available”.

1. I note from the annotations in Carter's Criminal Law, at paragraph [1.40], the following:

"Act number 3 of 1997 amended this definition, so as to include the loss of a distinct part or organ of the body, and serious disfigurement. The amendment legislatively over-ruled the decision in R v. Tranby [1992] Qd R 432, … where removal of a substantial portion of the earlobe, causing permanent cosmetic disfigurement but no impairment of bodily function, was held not to constitute…