KD v Police - [2011] QMC 5

MAGISTRATES COURT OF QUEENSLAND

CITATION: KD v Police [2011] QMC 5

PARTIES: KD
(applicant)

v
Police
(respondent)

FILE NO: MAG226840/10(9)

DIVISION:Magistrates Court
PROCEEDING: Application for the cross-examination of a witness at committal

ORIGINATING COURT: Brisbane Magistrates Court

DELIVERED ON: 6 May 2011

DELIVERED AT: Brisbane

HEARING DATE: 3 May 2011

MAGISTRATE: Hine BP, Deputy Chief Magistrate

ORDER:Witnesses as set out in the application attend for cross-examination on the written statements.
CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – limitations on calling witnesses maker of written statement tendered or to be tendered by prosecution - onus of proof – “Substantial reasons” examined – “in the interests of justice” examined – alleged rape 43 years previously – long delay in reporting –applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution - conflict of evidence – need for Basha inquiry.
Justices Act 1886 (Qld), s 83A(5AA), s 110B

COUNSEL:Fleming (sol) for applicant
SOLICITOR:ATSILS for the applicant

The Application

This is an application Under Section 83A(5AA) of the Justices Act 1886.

That section states:-
(5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)—

(a)to attend before the court as a witness to give oral evidence; or
(b)to be made available for cross-examination on the written statement.

Under the heading - Special provisions applying to a direction under s83A(5AA) s 110B of the Justices Act 1886 states:-

(1)A magistrate at a direction hearing must not give a direction under section 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 on the written statement.

The applicant seeks a direction to cross-examine

1.   The complainant
2.   Witness KM
3.   MA (social worker)
4.   RS (social worker)

Cross-examination of the complainant

In this matter the applicant is charged on a single count that on a date unknown between the 31^st day of May 1967 and the 1^st day of January 1968 at Harlin in the State of Queensland he committed rape upon the complainant.

It can be seen immediately that this is an unusual matter as the alleged rape occurred some 44 years ago and the rape is alleged to have occurred at an unspecified time covering a period of 7 months.

The evidence of the complainant in relation to the date and what occurred is as follows:

“ 9. Sometime through grade 8 we moved to a dairy farm called O’s Dairy Farm which was situated at H. [ … ] O’S was the name of the family property.
10. I then started attending State High School continuing in grade 8. I don’t…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KD v Police

Details

AGLC: KD v Police [2011] QMC 5
Case: [2011] QMC 5
Decision Date: 6 May 2011

CaseChat Overview and Summary

In the case of KD v Police, the applicant sought to cross-examine several witnesses who were intended to be called by the prosecution in a trial for alleged rape that occurred over 43 years ago. The case was before the court on an application to be heard under the Criminal Procedure Act 2009 (Vic). The applicant argued that the significant delay in reporting the crime had deprived him of the opportunity to test the complainant's allegations at an earlier stage, necessitating the cross-examination of these witnesses.

The legal issues before the court involved whether there were substantial reasons, in the interests of justice, to allow the applicant to cross-examine the witnesses. The court had to weigh the applicant's need to test the complainant's evidence against the potential prejudice to the prosecution and the need to avoid unnecessary delay. The applicant's loss of opportunities to challenge the complainant's account promptly was considered, along with the conflict in the evidence and the requirement for a Basha inquiry to assess the reliability of the evidence.

The court concluded that substantial reasons existed to allow the applicant to cross-examine the witnesses, considering the significant delay in reporting the crime and the potential unreliability of the evidence due to the passage of time. The court recognised the importance of ensuring that the trial was conducted fairly and justly, taking into account the unique circumstances of this case. The application was thus allowed, and the specified witnesses were directed to attend for cross-examination on the written statements.

Orders

Orders of the court

Witnesses as set out in the application attend for cross-examination on the written statements.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.