DC v Queensland Police Service
[2018] QMC 3
•23 February 2018
MAGISTRATES COURT OF QUEENSLAND
CITATION:
DC v Queensland Police Service [2018] QMC 3
PARTIES:
DC
(Applicant/Defendant)v
Queensland Police
(Respondent)FILE NO/S:
MAG-00128716/16(5)
DIVISION:
Magistrates Court
PROCEEDING:
Application to cross-examine a witness in committal
ORIGINATING COURT:
Mt Isa
DELIVERED ON:
23 February 2018
DELIVERED AT:
Mt Isa
HEARING DATE:
15 December 2017
MAGISTRATE:
J Morton
ORDER:
The application is granted on grounds 3 and 8 only. The application is refused on grounds 1, 2, 4 and 7.
CATCHWORDS:
CRIMINAL LAW-PRACTICE AND PROCEDURE-
COMMITTAL PROCEEDINGS-APPLICATION TO CROSS EXAMINE WITNESSES-onus on defendant – substantial reasons – interests of justice
Justices Act 1886 (Qld), s83A (5AA), s 110B
COUNSEL:
C Grant (applicant)
Sgt V Cooper (Qld Police Service)
SOLICITORS:
Qld Police Service for the Prosecution
Telford Lawyers for applicant
The Defendant is charged with three counts of indecent treatment of a girl under the age of 16 on various dates between 31 December 1972 and 1 January 1974, 31 December 1973 and 16 April 1974 and on unknown dates between 12 August 1976 and 31 August 1976. The Defendant is also charged with 10 counts of rape on various dates. All charges relate to the same Complainant. The dates of the alleged charges arise from when Defendant was both a juvenile and an adult. At the time of the alleged offending, the complainant was also a child and an adult.
In general terms, the Prosecution case is that the Complainant was sexually assaulted by the Defendant from around about 1973 to 1983 in three locations – Gregory Street, Cloncurry, Seymour Street Cloncurry and 10 Mensa Street Sunset Mount Isa.
The complaint of the alleged sexual offending was not made until 2013. The background of the complaint being made is alleged to be related to an incident where there was a birthday party celebration for the Defendant’s son, which was held at the Brother’s Leagues Club in Townsville on 24 August 2013. The Complainant attended that birthday party after having been at the races that day. She attended and has described herself as drunk, and said she obtained permission from her “nanna” and the Defendant to see if she could still attend which they both agreed.
It is whilst at this birthday party celebration that the Complainant saw her ex-husband and his new wife and family. There was some allegation of death stares being sent back and forth from both parties, her ex-husband’s new wife and new wife’s daughter. The Complainant alleges that she interacted with numerous family members throughout the night.
At some stage during the night, there was a dispute between the Complainant and the Defendant as to why her ex-husband and his new wife and family were present. The Defendant is alleged to have said the words “I invited them”. It is alleged at that stage the Complainant alleges “that with those words I transported back to the time you started abusing me”.[1]
[1] See Statement 24 November 2013 at paragraph 44.
In her statement, the complainant states “The message I got from his tone and his look was, “I can do anything to you in front of anyone and you can’t do a darn thing about it”. The Complainant is alleged to have said “fuck this I’m outta here”. She left Brother’s Leagues Club and waited in the car park for her boyfriend to collect her. The Complainant says that she was “very upset after having seen the Defendant again and remembering everything that he had done to me as a child and how his behaviour could still be hurtful to me”. [2]
[2]Ibid.
Whilst in the carpark awaiting for her boyfriend to pick her up, the Complainant sent a text message to the mobile phone number of the Defendant and the message read “If this is what I get for showing loyalty fuck loyalty fuck family you are just a paedophile cunt”. A further text message was sent by the Complainant to the Defendants number which read; “I’m going to go to the police about you. I hope you rot in jail you paedophile”. No response was received from the Defendant.
The Defendant applies for direction under section 83A (5AA) of the Justices Act 1886 (The Act) requiring the Prosecution to call the Complainant to attend before the court as a witness to give oral evidence or to made available for cross-examination.
The Law
Section 110B(1) of The Act provides; “A Magistrate at a direction hearing must not give a direction under s 83A(5AA) in relation to the maker of a written statement unless the Magistrate is satisfied there are substantial reasons why, in the interests of justice the maker should attend to give oral evidence or be made available for
cross-examination under written statement”.
Substantial reasons, why, “in the interests of justice” examined
These sections in the Act were inserted in 2010 as a result of the passing of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010. The amendments restrict the calling and cross-examination of Prosecution witnesses and from what occurred previously, when the Prosecution would have to call each witness to give oral evidence and/or be cross-examined unless a Defendant, represented by a lawyer, consented to the witness not being called.
The Attorney-General in his second reading speech for the Bill on 13 April 2010 said[3]:
The amendments restrict the calling and cross-examination of Prosecution witnesses unless the Prosecution consents or the Magistrate is satisfied there are substantial reasons in the interests of justice why such witnesses should be called.
New South Wales legislation has been used for a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for 20 years, considered by the New South Wales courts and is generally regarded as working satisfactorily…
[3] See Hansard page 1255.
Accordingly the Court must take guidance from the New South Wales authorities on the meaning of the phrase “substantial reasons why in the interests of justice”.
This phrase was considered in Hanna v Kerarney & Anor[4] by Studdert J, who made useful observations which can be summarised as follows:
[4] (1998) 44 NSWLR 618 Supreme Court of NSW Administrative Law Division Common Law Division of 28 May 1998.
1. The primary aim of the legislative intention was to limit the time occupied in committal proceedings.[5] Committal proceedings are not to provide the opportunity for a full dress rehearsal for trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
[5] This is similar to the position in Queensland as Mr Moynihan QC in his Report to the Government which recommended this change to the legislation said in justifying his view that he was not persuaded that an unrestricted right to call and cross-examine witnesses should be retained. There are undoubtedly many benefits to the accused, to the Prosecution and the criminal justice system generally from a well prepared and conducted committal hearing. On the other hand there are undoubted effects and costs to the system from unnecessary, inappropriate and wasteful use of the committal; court costs, delay, excessive “churning” through unproductive court events. There are obvious costs to individuals – witnesses who may be available for cross-examination only to be told at the last minute that they are no longer required and excessive legal costs to the accused.
2. There can be no rigid or exhaustive definition of what constitutes “substantial reasons”. The Application to cross-examine requires identification and consideration of the objective of the cross-examiner and the framework of the Prosecution case. His Honour said that to require a witness to be cross-examined without a definite aim but in the hope of eliciting some evidence that might prove to be useful to the defence, would not constitute “substantial reasons”;
3.
It would be wrong to limit “substantial reasons” to situations where
cross-examination is likely to result in the discharge of the Defendant or establish grounds for a no true bill Application or to limit it to situations where such cross-examination is likely to substantially undermine the credit of an important witness. “Substantial reasons” may also be found elsewhere.
4. On any Application to cross-examine a witness, the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial. His Honour went on to say that this may mean that there are substantial reasons for requiring a witness for cross-examination for proper understanding of the nature of the Prosecution case or for understanding of the basis of a relative opinion held by a witness. His Honour said that these examples were not meant to be exhaustive.
5. “Substantial reasons” may be shown where cross-examination may lead to the narrowing of matters in dispute. His Honour said that this was a consideration of particular importance where the prospect exists of a lengthy trial.
6. This decision was not subject to an Appeal.
Prior to His Honour considering that decision there had also been a single judge decision in Losurdo v The Director of Public Prosecutions per Hidden J.[6] Hidden J’s judgment was appealed to the Court of Appeal in New South Wales where the judgment is Director of Public Prosecutions v Losurdo & Anor[7]. In a joint judgment of the court Their Honours found after examining a number of cases on the meaning of the word “substantial” that there was no point in endeavouring to ascertain the meaning of that word by reference to a number of synonyms.
[6] 10 March 1998.
[7] (1998) 44 NSWLR 618.
Their Honours said it was an ordinary English word which must be given its ordinary meaning in the content in which it appears. Their Honours said, “We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and that provisions of the Justices Act relating to them”.
Their Honours agreed with the five points made by Studdert J in Hanna v Kearney Supra. Their Honours went on in their judgment to say (at page 631);
There is nothing to suggest that the various dicta about the purposes of committal proceedings to which reference is being made has been overtaken by the legislation. Indeed, what the Attorney-General said in the course of his second reading speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of committal proceedings that there would rarely be more than a “paper committal”. This is borne out, not only by his general statements but by some of the examples which he gave in the course of his remarks.
Their Honours said that each of the case’s will depend on its own facts and circumstances and will need to be considered in the light of them.[8] The question will be whether in a given case “substantial reasons” have been established. Their Honours said that some help may be obtained from remarks of Studdert J in Hanna v Kearney but emphasised that there can be no rigid or exhaustive definition of what constitutes “substantial reasons”. They said it would be undesirable to attempt to give one. Of course one must continue to bear in mind the place that committal proceedings hold in our system of criminal justice.
[8] At page 632.
Such was recognised by the High Court in Barton v Regina where Their Honours stated that the opportunity to cross-examine witnesses was a legitimate benefit of committal proceedings to a Defendant quite apart from the opportunity of discharge by the magistrate. [9] Also Stephen J said:
These factors may and in the present case do, mean that the loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused. An accused also loses the opportunity of gaining a relatively precise knowledge of the case against him, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court, in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effects of the first two of those losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence, but the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown’s evidence. It is likely to be the most serious detriment and which absence of prior committal proceedings imposes upon the accused.[10]
[9] [1980] 147 CLR 75 per Gibbs ACJ and Mason J at 99-101 and Steven J at 194-195.
[10] At page 105-106.
His Honour Studdert J in Hanna (Supra) said that the modern procedure of service upon a Defendant and the statements of the Prosecution witnesses has not in his view diminished the force of Stephen J’s remarks.
In 2006, Whealy J in Sim v Magistrate Corbett and Anor[11] set out a number of relevant principles enunciated in decisions involving the New South Wales legislation. His Honour’s summary was adopted by Fullerton J in Qaumi v Director of Public Prosecutions and Anor [12] as follows:
[11] [2006] NSWSC 665 at [20].
[12] [2008] NSWSC 675.
i the purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal;
ii. the onus on the defence to satisfy the local court that an order should be made in direct in the attendance of witnesses;
iii. the process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters that are set for trial;
iv. in relation to matters falling within s 91 of the Criminal Procedure Act 1986 (NSW) the defendant must show there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses;
v. the obligation to point to substantial reasons is not as onerous as the reference to special reasons in s 93; nevertheless it raises a barrier which must be surmounted before cross-examination will be permitted; [13]
vi. each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might in a particular case constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.
vii. Substantial reasons might exist for example where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.
vii. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise at trial.
[13] Section 93 talks about “special” reasons having to be shown to cross-examine witnesses in certain types of charges such as offences of violence or cases involving prescribed sexual offences.
In Quami, Fullerton J further said “self-evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding”.
The Onus of Proof
The onus of satisfying the court as to whether there are substantial reasons, justifying the attendance of the maker of the written statements, clearly falls upon the Defendant.[14]
[14] See Sim v Magistrate Corbett [2008] NSWSC Court 665 per Whealy J and Hanna v Kearney [1998] NSWSC 227 per Stoddard J and Quami v DPP and Anor [2008] NSWSC 675 per Fullerton J
Central Issues
On behalf of the Defendant it has been submitted that the central reasons justifying the orders sought are:
· to determine the credibility and reliability of the Complainants;
· to explore the strength of the Crown case;
· to avoid being taken by surprise at trial;
· to clarify crucial aspects of the conduct alleged and to test the memory of the Complainant;
· to ascertain the nature of the Complainant’s ambiguous and inconsistent complaints and to discount collusion;
· to be apprised of the details of the Complainant in order to ascertain inconsistency in versions of events given to police and independent persons – such evidence may show a reconstruction of events.
Threshold Question – Reasons to justify the calling
Before embarking on an analysis of the meaning of the phrase “substantial reasons why in the interests of justice” there is a threshold question to be answered. That is; “has the Defendant complied with the prerequisites to making such application?”
Section 110B (3) provides;
“An application for a direction under s 83A(5AA) may be made only if –
(a) The Defendant has by letter, or by email or some other electronic form of written communication (the Defendant’s communication) advised the prosecution of the following:
(i) the name of the maker of the written statement the subject of the application;
(ii) the general issues relevant to the making of the application;[15]
[15] The Act gives examples of general issues of identification evidence, expert opinion evidence.
(iii) the reasons to be relied to justify the calling of the maker of the written statement to give oral evidence;
(a) a time (the nominated time) for the prosecution to respond to the Defendant’s communication;
(b) the prosecution’s response to the Defendant’s communication (the prosecution’s response) has been received, or it has not been received within the nominated time; and
(c) there is filed with the application –
i. a copy of the Defendant’s communication; and
ii. (the prosecution response, if it has been received.)”
(my underlining)
The Defendant by letter dated 2 June 2017, advised the Prosecution that the Defendant wishes to cross-examine the Complainant and it is necessary to directly quote from the communication as follows:
“The cross-examination of the Complainant on the following issues:
1. History of depression, mental health episodes, diagnosis, medication prescriptions, and dates of diagnosis (relevant to her credit);
2. Issues surrounding the Complainant’s resignation from the Department of Education surrounding claims of disagreement (relevant to her credit);
3. Circumstances surrounding the Complainant at the 21st birthday of MC on 24 August 2013 including being “transported back to the time she was being abused”;
4. The family animosity which surrounded the Complainant’s ex-husband PS and his new wife being invited by the Defendant to attend the 21st birthday and the impact it had upon the Complainant;
5. The process of contacting numerous friends and relatives in order to find out details of times, places and events over the years, in an effort to “fill in the gaps” which she could not recall;
6. The matters of fact that she had been told from others in the above mentioned process as opposed to matters of fact she could not personally recall (in order to resolve what is hearsay and what is not to ensure only properly admitted evidence goes before the jury);
7. A level of detail the Complainant is able to recall about each of the 13 charges currently before the court (this will assist the Office of the Director of Public Prosecutions with proper particularisation of the charges proceeded upon);
8. The degree of recall about times, dates, houses, locations, events, etc (in order to clarify the precise nature of the allegations so that available alibi evidence can be obtained);
9. The reasons for providing an addendum statement to police in the circumstances in which it came about.”
On behalf of the Defendant it is said that the cross-examination on these issues will;
· limit the issues at trial
· lay a basis for the exclusion of various parts of the evidence prior to the trial
· assist the Defendant’s case he has to meet at trial and assist with the obtaining of alibi evidence.[16]
[16] See communication to Prosecution 2/6/17 at page 6.
The Prosecution responded to the written correspondence on behalf of the Defendant on 10 July 2017 by correspondence between the Defendant’s legal advisers and the Prosecution. [17] The Prosecution have agreed that cross-examination on grounds 5, 6 and 9
[17] Exhibit B to the Affidavit of C. Grant sworn 30 November 2017 and filed with the Application.
Grounds 1, 2, 3, 4, 7 and 8 are subject to this application.
Ground 1
Ground 1 on this application relates to the history of depression, mental health episodes, diagnosis, medication prescriptions, and dates of diagnosis (relevant to her credit). It is submitted that the substantial reasons in the interests of justice, cross-examination on these issues will limit the issues at trial, lay a basis for the exclusion of various parts of the evidence prior to the trial and assist the Defendant to know the case he has to meet at trial and assist with the obtaining of alibi evidence.
The basis for the Defendant wanting to cross-examine the Complainant regarding this ground is that the Complainant is alleged to have a long standing history of depression and that at no stage did she ever confide in any counsellors over the years of the alleged abuse at the hands of the Defendant. This the Defendant alleges ultimately affects the Complainant’s credibility.
In my view, after considering all of the written correspondence on behalf of the Defendant, the Defendant has failed to advise the Prosecution of the reason to be relied upon to justify the calling of the Complainant to be cross-examined on this ground. In my view the correspondence is vague and does not particularise the aim for which this ground is sought with any clear purpose or certainty. The initial correspondence on behalf of the Defendant, lists ground 1 as;
· “History of depression, mental health episodes, diagnosis, medication prescriptions, and dates of diagnosis (relevant to her credit).” [18]
[18] See correspondence 2 June 2017 at page 5.
In oral submissions on behalf of the Defendant, it was submitted “but at no stage, did she ever confide in any counsellors over the years of the alleged abuse at the hands of the applicant”.[19] I am of the view that this ground is merely “fishing” and no substantial reasons have been established as to why, in the interests of justice the complainant should be made available for cross-examination on this ground.[20]
[19] Transcript P 5 L17.
[20]Welch v Queensland Police Service [2012] QMC 5.
Cross-examination is refused on this ground.
Ground 2
The second ground of cross-examination the Defendant seeks from the Complainant “is regarding the issues surrounding the Complainant’s resignation from, (as I take it) her previous employment with the Department of Education surrounding claims of a disagreement” relevant to her credit. The phrase ‘disagreement’ is unclear on this application. Nothing in the written communication or in oral submissions exists to explain what aim is to be achieved on this ground regarding the ‘disagreement’ and exactly what this means on this application.
No evidence of what the term ‘disagreement’ has been made clear throughout the written correspondence.
In my view, the Defendant has failed to identify or particularise the reasons to be relied upon to justify the calling of the Complainant for cross-examination, therefore the application on this ground is refused.
Ground 3
The third ground in which the Defendant seeks to cross-examine the Complainant is the “circumstances surrounding the Complainant at the 21st birthday of MC on 24 August 2013, including the phrase “transported back to the time she was being abused”. On behalf of the Defendant it is said “that this issue goes towards laying a foundation as to whether or not the credibility of the Complainant has been affected by her so-called mental health difficulties”. It is unclear what the mental health difficulties are. This evidence is an important factor on the material before this court, it seems to be the commencement of the basis for making the initial complaint to police.
The circumstances in which the Complainant says she was “transported back in time” and the fact that the allegations are some 40 years old coupled with the circumstances surrounding the complainant making the initial complaint to police in my view are substantial reasons why in the interests of justice, this ground should be allowed and I allow cross-examination on this ground.
Ground 4
The next point that the Defendant seeks to have the Complainant made available for cross-examination is, “the animosity which surrounded the Complainant’s ex-husband, PS and his new wife being invited by the Defendant to attend the 21st birthday party and the impact it had on the Complainant”.
The Complainant says that her ex-husband, PS and his new family were sitting behind us. I got death stares from M (my ex-husband’s new wife) and A (M’s daughter) and continued talking to Nanna. [21] It is said that on behalf of the Defendant that the complaints made, stem from the Complainant seeing her ex-husband and his new wife and family at the birthday celebrations.
[21] See the Statement of the Complainant dated 24 November 2013 at paragraph 44.
On behalf of the Defendant it is said that this lays a foundation where a jury may ultimately conclude that the complaints made against the Applicant are an act of retribution done in spite, basically for the fact that she was unhappy about the relationship with her former husband. [22]
[22] Transcript P 6 L25-26.
In my view this ground is not properly made out. I note the prosecution in their communication stipulate that no clear aim has been established to satisfy substantial reasons why in the interests of justice the Complainant should be cross-examined on this ground. [23] I am of the same view.
[23] Communication dated 10 July 2017.
It is argued on behalf of the Defendant in relation to this ground, that this is not only relevant to her credit but lays the foundation for a motive to lie. [24]
[24] Transcript P6 L41.
I do not agree with this submission, no substantial reasons, why, in the interests of justice have been made out. I am therefore not satisfied that if the Complainant is not cross-examined at committal, the Defendant’s ability to receive a fair trial will be compromised. Therefore the application to cross-examine in this area is refused.
Ground 7
Ground 7 of this application relates to the “the level of detail the Complainant is able to recall about each of the 13 charges currently before the court” (this will assist the Office of the DPP with proper particularisation of the charges proceeded upon).” [25]
[25] See communication on behalf of the Defendant 2 June 2017 at page 6.
On behalf of the Defendant, it is submitted that “the level of detail will not only assist the Applicant in knowing the precise case that he must meet at trial, but it will have the effect of assisting the Crown Prosecutor who will ultimately be tasked to settle an indictment, as to whether each of those charges has sufficient particularity to be separately charged on the indictment. [26]
[26] Transcript P8 L37.
The Prosecution submit “Each charge has been detailed sufficiently in the Complainant Statement and Addendum Statement. Committal proceedings are not to be used as a fishing expedition. One of the main purposes of the Moynihan changes was to prevent the victims of violent crimes from having to give evidence twice.”[27]
[27] See above 16.
In considering this ground on behalf of the Defendant, particular attention is paid to the Statement of the Complainant dated 24 November 2013.
In addition, the Addendum Statement of the Complainant dated 3 June 2016 gives mention of dates, times and places that the Complainant alleges she was sexually assaulted by the Defendant, and that should be read in addition to the first Statement the Complainant made.
It is submitted that “essentially cross-examination in this area will focus both the Prosecution with what charges can ultimately be pursued and will focus the Applicant in knowing the precise case that he must meet.”[28] It is submitted that this ground amounts to substantial reasons in the interests of justice and this would alleviate the need for a Basha inquiry.
[28] See prosecution letter 10 July 2017.
In considering this ground, I must be mindful of the purpose of the cross-examination of a Complainant at committal proceedings and I must be mindful of what Studdert J said in Hanna v Kearney “To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might be proved useful to the defence would not constitute ‘substantial reasons’. It is for the Applicant to clearly define the purpose or purposes of the cross-examination which he seeks.” [29]
[29] [2007] NSWSC 1247.
The Prosecution by correspondence contend that each charge has been detailed sufficiently in the Complainant’s Statement including the Addendum Statement and this ground is a ‘fishing expedition’. [30]
[30] See Prosecution correspondence dated 10 July 2017 at page 3.
I must be mindful of the fact that the Complainant made a Statement on 24 November 2013 and an Addendum Statement on 3 June 2016 in which she gives evidence about her recollection of the events and who she spoke to.
On behalf of the Defendant in oral submissions, it was submitted that because of the age of the charges that an unclear or perhaps blurred memory of an event which lacks sufficient particularity in time, place and circumstance will ultimately not be a charge able to be pursued in the higher courts. [31]
[31] Transcript P8 L45.
It is further submitted that cross-examination of this area will allow the Prosecution to prepare an indictment and the Defendant to know exactly what charges will be pursued against him and the precise case that he must meet. [32]
[32] Transcript P9 L1.
I am not satisfied that the Defendant will be surprised at trial to his detriment. The police have no doubt considered the current charges against the Complainant’s statements and no doubt a crown prosecutor tasked with drafting an indictment will have regard to what evidence establishes each count on an indictment.
In my view this ground seems to be a dry run or a dress rehearsal for cross-examination regarding the Defendant having the ability to test the evidence by cross-examination. Cross-examination is refused on this ground.
Ground 8
Ground 8 is “the degree of recall about times, dates, houses, locations, events, etc. (in order to clarify the precise nature of the allegations so that available alibi evidence can be obtained)”. [33] The Prosecution contend that this ground is a duplicate of Ground 7. [34] I somewhat agree, however a further analysis of this ground is required.
[33] See correspondence dated 2 June 2017 on behalf of the Defendant to the Prosecution at page 6.
[34] See correspondence dated 10 July 2017 at page 3.
In considering the correspondence on behalf of the Defendant, I remain mindful of the historical nature of the charges.
In my view, some of the charges being over 40 years old and the allegations as I see it, of times, dates and places are matters which in my view, are matters which require substantial reasons, why in the interests of justice cross-examination ought to be permitted.
In oral submissions on this ground, it was submitted that “the defendant may wish to explore a potential notice of alibi”.[35] In relation to this ground, a consideration of the nature of the allegations and in particular, the historical nature of the charges alleged are important factors in my view.
[35] Transcript P9 L11.
The Prosecution submit that both statements are very clear and the historical complaint is that the victim could not clearly articulate what happened 40 years ago and that Ground 8 is covered in the Statements by the Complainant. The Prosecution contend this is “too broad” of a ground to make out. [36]
[36] Transcript P16 L40.
I agree with this submission, when considering the written correspondence and the oral submissions on behalf of the Defendant. However I must bear in mind the historical nature of the charges and apply the formula.[37]
[37] See Sim v Magistrate Corbett [2008] NSWSC Court 665 per Whealy J and Hanna v Kearney [1998] NSWSC 227 per Stoddard J and Quami v DPP and Anor [2008] NSWSC 675 per Fullerton J
The Defendant effectively seeks to cross-examine the Complainant on the times, dates, houses, locations, events etc. A substantial reason includes where a witness has made conflicting statements. Further, cross-examination on an issue that might substantially undermine the credit of a witness has been recognised as a substantial reason.[38]
[38]Losurdo v DPP (1998) 44 NSWLR 618.
I am satisfied that there are substantial reasons why, in the interests of justice the Complainant should be cross-examined on this ground. I allow cross-examination on this ground.
Order:
The Defendant is granted leave to cross-examine on grounds 3 and 8 and refused on grounds 1, 2, 4 and 7.
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