Hge v Police
[2012] QMC 8
•22 March 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
HGE v Police [2012] QMC 8
PARTIES:
HGE
(applicant)
v
POLICE
(respondent)
FILE NO/S:
MAG-00102314/11(5)
DIVISION:
Magistrates Court
PROCEEDING:
Application to cross-examine witnesses in Committal Proceedings
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
22 March 2012
DELIVERED AT:
Brisbane
HEARING DATE:
31 January 2012
MAGISTRATE:
Callaghan CJ
ORDER:
The application is dismissed.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – justification and excuse – compulsion – mistake of fact – identity of police - force reasonably necessary to effect arrest.
Justices Act 1886 (Qld), s 83A(5AA), s 110B
Criminal Code, s 31, s 24, s 254
Police Powers and Responsibility Act 2000, s 615, s 616
COUNSEL:
P Smith for the applicant
J Ball for the respondent
SOLICITORS:
Fisher Dore for the applicant
Office of Director of Public Prosecutions for the respondent
HGE is charged with three counts of dangerous operation of a vehicle, two counts of serious assault with intent to prevent lawful arrest and endangering a child under seven years together with other related summary offences. All are alleged to have occurred on 14 June 2011. The evidence is that the defendant had on 4 June 2011 allegedly committed an armed robbery of the Subway store at Hudson Road, Albion and then on 10 June 2011 an armed robbery of the Caltex service station at Worongary and, later that day an attempted armed robbery of a security guard at Nudgee. It is common ground that he escaped police custody on 10 June 2011. Surveillance undertaken by police officers ultimately located him in a Landcruiser motor vehicle in the car park of the Pineapple Hotel at Kangaroo Point at about lunchtime on 14 June 2011. Detectives descended upon the car park with emergency sirens and lights operating. The defendant used his vehicle to push some of the police vehicles out of the way and eventually made his escape in the Landcruiser. Ultimately he was intercepted by police at St Pauls Terrace and taken into custody.
This is an application by the defendant pursuant to s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that Constable Andrew Anderson, Sergeant Aaron Bates and Andrew McLaren, a mechanic in the employ of the Queensland Police Service be made available for cross-examination on the statements provided by them contained within the brief of evidence.
The court must not give such a direction unless satisfied there are substantial reasons why in the interests of justice that the maker of the statement should attend and give oral evidence or be made available for cross-examination[1].
[1] See s 110B(1) of the Act.
The onus of satisfying the court as to whether there are substantial reasons why in the interests of justice the maker of the statement should attend to give oral evidence is on the defendant[2].
[2] See Police v ED [2011] QMC3 at paragraph 5 and the cases referred to therein.
Substantial reasons, Why, In the Interests of Justice
That phrase was placed into the Act by the Queensland Parliament as specifically it had been used for some 20 years in New South Wales which gave rise to jurisprudence on the meaning of the phrase.
Studdert J in Hanna v Kearney and Another[3] set out some factors that may be relevant to the making of these applications but emphasised that he was not intending to state each and every factor. His Honour said:-
[3] [1998] NSW SC 1026 (28 May 1998).
” 1. Section 48E(2)(b) plainly has as a primary aim the limitation of the
time occupied in committal proceedings. Such proceedings are not to
provide the opportunity for a full dress rehearsal for the trial. Cross- examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2. There can be no rigid or exhaustive definition of what constitutes
"substantial reasons" and it would be undesirable to attempt to give
one. Relevant issues inevitably vary from case to case. However, any
statement served has to be considered with reference to the issues it
addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require
a witness for cross-examination without a definite aim but in the hope
of eliciting some evidence that might prove 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.
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
to establish grounds for a no bill application. Equally it would be
wrong to limit "substantial reasons" to situations where cross-examination
is likely to substantially undermine the credit of an important witness. "Substantial reasons" may well be found elsewhere.
4. On any application under s 48E the fundamental objective of committal
proceedings must be borne in mind, namely the objective of facilitating
a fair trial in the event that the person charged is committed and later
stands trial. This may mean that there are substantial reasons for
requiring a witness for cross-examination for a proper understanding
of the nature of the prosecution case or for an understanding of the
basis of a relevant opinion held by a witness. I do but give those
instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this
may lead to the narrowing of matters in dispute: see Goldsmith v Newman. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases.”
There was no appeal from that decision. Prior to His Honour considering that decision there had been a single Judge decision in Losurdo v Director of Public Prosecutions (10 March 1998) by Hidden J which judgment was appealed in Director Public Prosecutions v Losurdo and Another[4]. That judgment of the Court of Appeal was delivered after that of Studdert J. In Losurdo the Court of Appeal agreed the five points made by Studdert J in Hanna v Kearney above but added[5] “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 born out, not only by his general statements but by some of the examples which he gave in the course of his remarks.”
[4] (1998) 44 NSW LR 618.
[5] At page 631.
Their Honours also said[6] that whilst the guidelines set out in the judgment of Studdert J in Hanna may be helpful, the ultimate task is to apply the section in the context of the facts and circumstances of the case at hand. Their Honours also reviewed Chid’s case[7] and Grassby’scases[8] as to the importance and purpose of committal proceedings, which remain as important post these amendments as they were prior to the same.
[6] At page 632.
[7]Carlin v Thawat Chid Khunthid (1985) 4 NSW LR 182.
[8] R v Grassby (1988) 15 NSW LR 109 (New South Wales Court of Criminal Appeal) and Grassby v R (1998) 168 CLR 1 (The High Court).
Their Honours emphasised that there can be no rigid or exhaustive definition of what constitutes “substantial reason” and said that one must continue to bear in mind the place that Committal Proceedings hold in our system of criminal justice. This was recognised by the High Court in Barton v R[9] where their Honours stated that the opportunity to cross examine Crown witnesses was a legitimate benefit of Committal Proceedings to a defendant quite apart from the opportunity of discharge by the magistrate. Stephen J also said a little earlier in his judgment[10] -
“These factors may, and in the present case do, mean that 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 relatively precise knowledge of the case against him and, 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 effect of the first two of these 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 which absence of prior committal proceedings imposes upon the accused.”
[9][1980] 147 CLR 75 per Gibbs ACJ and Mason J at 99-101 and per Stephen J at 194-5
[10]At page 105-106
In more recent times Whealy J in Sim v Magistrate Corbett and Another[11] set out the relevant principles as follows:-
[11][2006] NSW SC 665
“1.The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.
2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.
3. 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 are sent for trial.
4. In relation to matters falling within s 91 of the CriminalProcedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.
5. 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.
6. 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.
7. 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.
8. 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 in the trial.”
His Honour’s summary was adopted by Her Honour Fullerton J in Quami v Director of Public Prosecutions and Another[12] to which Her Honour added a further point as follows:-
“Self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding.”
[12] [2008] NSW SC 675.
This application
Counsel for the defendant has identified what the defendant’s case will be. It is: the defendant didn’t appreciate that these persons in the car park were police officers and that when a shot was fired at his vehicle he feared for its occupants who included an adult female and the child whose life is alleged to have been endangered. The defendant will argue that pursuant to s 31 of the Criminal Code he’s not criminally responsible for the acts that followed when coupled with his honest and reasonable but mistaken belief that these were not police officers[13].
[13] See s 24 Criminal Code.
It is common ground between the prosecution and the defence that the police officers were wearing plain clothes.
It is also common ground that closed circuit television footage shows the otherwise unmarked police cars entering and/or driving within the car park with emergency lights flashing.
The issues
There are three issues concerned in this application. They are:
1. The defendant’s belief in the assailants not being police officers;
2. The lawfulness of the gun being drawn by Constable Anderson;
3. Did the shot hit the vehicle.
The defendant’s belief that assailants were not police
S 31 of the Criminal Code relevantly provides –
“31(1) A person is not criminally responsible for an act … if the person does … the act under any of the following circumstances that is to say –
…
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;
(d) when –
(i) the person does … the act in order to save himself … or another person … from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
(ii) the person doing the act … reasonably believes he … or the other person is unable otherwise to escape the carrying out of the threat; and
(iii) doing the act … is reasonably proportionate to the harm or detriment threatened.”
S 24 (1) of the Criminal Code relevantly provides as follows:-
“24(1) A person who does … an act under an honest and reasonable but mistaken belief in the existence in any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as the person believed to exist.
Here the defendant would argue that he didn’t appreciate that the persons in the car park were police officers and that one of these persons fired a shot from a gun levelled at his (the defendant’s) vehicle. He would then argue that his act of driving in the manner he drove to get out of the car park and then to make an escape was an act reasonably necessary in order to resist this actual and unlawful violence threatened to him[14] or alternatively when he drove in the manner he drove he did so in order to save himself and the persons with him from serious harm or detriment threatened to be inflicted by these persons whom he didn’t believe to be police officers and who were in a position to carry out the threat and at the time he was unable to otherwise escape and his manner of driving was reasonably proportionate to the harm or the detriment threatened[15].
[14]See s31(1)(c)
[15] See s 31(1)(d)
This all depends upon him being under an honest and reasonable but mistaken belief that these were not police officers. He accepts that they were police officers now; hence he accepts that his belief was mistaken. He would argue that on the evidence a jury could not be satisfied beyond a reasonable doubt that he did not have an honest and reasonable belief that they were not police officers.
The evidence on the point is that the police cars came into the car park of the Pineapple Hotel with sirens and emergency lights operating. Sgt Bates[16] said that as he activated the siren to the police vehicle in which he was travelling, the Landcruiser (driven by the defendant) began to rapidly reverse. He said that another plain clothes police officer by the name of Bishop attempted to use his vehicle (this would be unmarked) in order to prevent the Landcruiser from reversing out. However, he goes on, the Landcruiser reversed more rapidly and ultimately the Landcruiser rammed Bishop’s vehicle out of the way. The front of Bishop’s vehicle and the Landcruiser then also came into contact and other vehicles then surrounded the Landcruiser. Plain clothes police officers alighted from their vehicles and Sgt Bates drew his service firearm and levelled it at one of the Landcruiser’s rear tyres. By this stage Const Anderson was out of his vehicle and had his service firearm drawn and pointed in the direction of the defendant through the windscreen yelling “Police, don’t move”[17]. Anderson says that the defendant looked up through the windscreen and he (Anderson) again yelled “Police, get out of the car.” He then says the Landcruiser started to manoeuvre again with the engine revving and again Anderson with his firearm pointed in the defendant’s direction yelled “Police, get out of the car.” Anderson says the defendant drove his vehicle straight at Anderson causing him to jump out of the way. Just prior to this Sgt Bates says that the Landcruiser reversed towards him requiring him to jump out of its path otherwise he would have been struck and as he did this his firearm, which had still been pointed at the rear tyre of the Landcruiser, discharged.
[16] Paragraph 12 of his statement dated 8 August 2011
[17] See paragraph 20 of the statement of Anderson dated 8 August 2011
The Landcruiser made its way out of the car park, turned right onto Main Street and continued driving up the road where other particulars of dangerous driving are alleged to have taken place.
Accordingly the evidence relevant to this consideration is that:
1. there were men in cars which had lights and sirens operating consistent with police vehicles even though the cars were unmarked;
2. those men having surrounded the Landcruiser, alighted from their vehicles and two of them pointed firearms, one in the direction of the defendant and one in the direction of the defendant’s vehicle;
3. the defendant was told, according to the statement of the police officers on three occasions, that they were police officers (a fact that is disputed by the defendant)
I cannot see what further information could be drawn from the police officers concerning their identification or the objective facts from which the defendant could draw an inference that they were not police officers which could be of any benefit to the defendant nor would the cross-examination give any better understanding of the nature of the prosecution case nor would it lead to any narrowing of issues in dispute.
It was argued by defence counsel that the dispute by the defendant that the police said they were police could in certain circumstances be a substantial reason why in the interests of justice the witnesses need to be cross-examined. This is not such a case. It’s a simple dispute on the facts. To appreciate the case against him, the defendant doesn’t need to know any further information from the police about how they told him they were police. Const Anderson said he yelled out 3 times that they were police and Sgt Bates said he heard Anderson yelling “Stop. Police” several times.
Therefore there are no substantial reasons why in the interests of justice the police officers ought to be cross-examined on this aspect.
Lawfulness of the firearms being drawn
In further submissions by the defence it was submitted that the defence case at trial will be:
1. The police were not acting lawfully (section 31(1)(c) of the Code) and/or
2. The defendant acted lawfully under section 31(1)(d) of the Code
Section 254 of the Criminal Code states:
“254. It is lawful for a person who is engaged in the lawful execution of any … process or warrant, or in making any arrest and for any person lawfully assisting the person to use such force as may be reasonably necessary to overcome any force used in the resisting of such execution or arrest.”
Section 283 of the Criminal Code states:
“283. In any case in which the use of force by one person to another is lawful the use of more force then is justified by law under the circumstances is unlawful.”
Section 615 of the Police Powers and Responsibilities Act 2000 (“PPRA”) provides:
“615. (1) It is lawful for a police officer exercising or intending to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.
(2) Also it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping lawful custody.
(3) The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.”
Section 616 of the PPRA relevantly provides:
“616. (1)This section applies if a police officer reasonably suspects a person –
…
(b) has committed an offence punishable by life imprisonment and is attempting to escape arrest or has escaped from arrest or custody.
…
(3) It is lawful for the police officer to use the force reasonably necessary –
…
(b) to apprehend the person; or ;
(c) to prevent the escape of a person from arrest or custody
…
(4) The force a police officer may use under this section includes force likely to cause grievous bodily harm to a person or the person’s death.
(5) If the police officer reasonably believes it is necessary to use force likely to cause grievous bodily harm to a person or the person’s death the police officer must if practicable first call on the person to stop doing the act.”
The defence would argue at trial that the force used by the police in drawing the firearms and in one police officer firing the firearm was unlawful. In my view the drawing of the firearms (i.e. without any shot being fired) is not force likely to cause grievous bodily harm to a person or a person’s death. The prosecution would argue that the drawing of the firearms was justified in the circumstances of this matter pursuant to s 254 of the Criminal Code as the officers were attempting to make an arrest; and also rendered lawful pursuant to s 615 of the PPRA. It is abundantly clear on the facts that the police were engaged in arresting the defendant for the indictable offences of the armed robbery of the Subway store at Hudson Road, Albion on 4 June 2011, the armed robbery of the Caltex service station at Worongary on 10 June 2011 and the attempted armed robbery of a security guard at Nudgee on 10 June 2011. Sgt Bates in his statement refers to the incident at the Pineapple Hotel as an attempt to arrest the defendant.
I am of the view that further cross-examination of Sgt Bates or Const Anderson would not assist the defendant in any attempt by him to show that the drawing of the firearms was unlawful.
At the time that Sergeant Bates drew his firearm (which was the firearm which eventually discharged) he suspected that the defendant had committed an armed robbery of the Subway store at Hudson Road, Albion on 4 June 2011 and an armed robbery of the Caltex service station at Worongary on 10 June 2011[18] and further that he had committed an attempted armed robbery of a security guard at Nudgee on 10 June 2011 using personal violence towards that victim.[19].
[18] Both being offences punishable by life imprisonment – see s 411(2) of the Criminal Code.
[19] Also another offence punishable by life imprisonment – see s412(3) of the Criminal Code.
Sgt Bates said that at the time of attempting to arrest the defendant he also suspected that the defendant was responsible for using a concealable firearm to shoot and wound a criminal associate on 8 February 2008. Defence counsel informs the court that the defendant has been found not guilty of that matter and that that fact gives rise to a number of questions such as:-
1. What exactly was Sgt Bates’ knowledge as to this;
2. Was he aware of the not guilty finding;
3. If not, where did he get his information from;
4. Who told him this;
5. Did he check QPRIME or POLARIS;
6. Had he seen a crime report concerning the matter.
All of these questions may be very interesting but I can’t see how they would in any way affect the question as to whether or not s 616 of the PPRA applies (if the firearm was discharged purposely) because Sgt Bates has given evidence that he reasonably suspected that the defendant had committed those other three offences punishable by life imprisonment and that he was attempting to escape arrest at the time.
Whether or not Sgt Bates followed all of the procedures in the Operations Procedure Manual does not render any action taken by the police officer that would otherwise be lawful pursuant to s 615 or s 616 of the PPRA to be unlawful.
Cross-examination of Sgt Bates or Const Anderson would not lead to a discharge of the defendant on these charges at committal, nor would it lead to a proper understanding of the prosecution case on these charges nor would it lead to a narrowing of the issues to be litigated on trial.
There are no substantial reasons in the interests of justice why Sgt Bates or Const Anderson should be cross-examined as to the drawing of their firearms or as to the discharge of Sgt Bates’ firearm.
The destination of the shot
The witness Andrew Ross McLaren is a vehicle inspection officer for the Queensland Police Service. He is a certified A grade motor mechanic and is a licensed examiner of motor vehicles approved by the Department of Transport. When he inspected the vehicle allegedly driven by the defendant he saw extensive damage to the left and right sides of the bull bar, left and right front guards, right front and right rear doors, right side step, right rear guard and tail gate, with less damage to the left and right sides of the rear bumper bar, left front and rear doors, left rear guard and left side step of the vehicle. He also inspected the tyres on the vehicle and saw that the left front tyre was extensively damaged consistent with it being driven on for some time in a deflated condition. He said that due to the damage he was unable to determine the tread condition of the tyre. He saw that the left front outer rim flange lip was striated and worn consistent with road contact. He saw that all other tyres were inflated.
It is not known as to whether he inspected the vehicle for any damage as a result of a discharged firearm. One would think that given the circumstances of this particular attempted arrest and ultimate arrest that he would have. But the matter doesn’t really end there because on the evidence of the police it is quite clear that the defendant engaged in commencing to make his escape in the car by ramming other cars on several occasions prior to this shot being fired. That is to say he made his intentions clear that he was going to make his escape and that his escape which included this ramming of cars occurred prior to the shot being fired and hence the firing of the shot could not have played any part in the defendant’s mind to commence his escape and cause him to drive dangerously before the shot was fired. There is no suggestion from the defendant that he only attempted to make his escape after the shot was fired.
Any continuation of driving dangerously after the shot was fired was only a continuation of the defendant’s desire to get away from these people who ultimately turned out to be police (on his version).
The ascertainment of the destination of the shot (if it can be ascertained) won’t lead to a narrowing of the issues to be litigated, won’t lead to a no case to answer submission, and won’t lead to a proper understanding of the prosecution case against the defendant.
There are no substantial reasons why in the interests of justice that the witness Mclaren ought to be cross-examined.
The Application is dismissed.
C Callaghan
Magistrate
22 March 2012
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