Archer v Police

Case [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…

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AGLC
Archer v Police [2011] QMC 54
Case
[2011] QMC 54
Decision Date

CaseChat Overview and Summary

The applicant, Archer, applied to the court to be permitted to cross-examine witnesses in a committal proceeding for an offence of armed robbery. The respondents were the police and the Director of Public Prosecutions. Archer sought to cross-examine several witnesses, including the victim and a police officer. The legal issues before the court were whether the applicant had substantial reasons to cross-examine the witnesses and whether it was in the interests of justice to permit the cross-examination.

The court held that Archer had substantial reasons to cross-examine the witnesses. The court found that the applicant had raised issues that went to the credibility of the witnesses and that the cross-examination was necessary to properly test the evidence. The court also found that it was in the interests of justice to permit the cross-examination as it would allow the applicant to properly challenge the evidence and ensure a fair trial. The court noted that the witnesses were available to be cross-examined and that there was no significant prejudice to the witnesses or the administration of justice in permitting the cross-examination.

The court granted the application and permitted Archer to cross-examine the witnesses. The court emphasised that the decision was specific to the facts of the case and that each case would need to be considered on its own merits. The court noted that the interests of justice would be the paramount consideration in determining whether to permit cross-examination in a committal proceeding. The orders of the court were that the application to cross-examine witnesses was granted.

Orders

Orders of the court

Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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