Leigh Heazlewood v Simon O'Donnell
[2012] ACTMC 5
•25 September 2012
LEIGH HEAZLEWOOD v SIMON O’DONNELL
[2012] ACTMC 5 (25 September 2012)
CRIMINAL LAW – PRACTICE AND PROCEDURE – committal process – application to cross examine prosecution witnesses – applicant seeking to explore circumstances of admissions made prior to the commencement of trial - whether leave should be granted - Magistrates Court Act 1930 (ACT), s 90AB(2).
Evidence Act 2011 (ACT) ss 90, 137
Magistrates Court Act 1930 (ACT) ss 90, 90AA(3), 90AB(2)
Andrew Mark Billing and Stuart Warren Gordon v Timothy Noel Allen [2009] ACTMC CC08/10632-34 (24 June 2009) (Magistrate J D Burns)
No. CC 3724 of 2011
Magistrate: L E Campbell
Magistrates Court of the ACT
Date: 25 September 2012
| IN THE MAGISTRATES COURT | ) | CC 11/3724 |
| AT CANBERRA IN THE | ) | |
| AUSTRALIAN CAPITAL TERRITORY | ) |
BETWEEN:
LEIGH HEAZLEWOOD
Informant / Respondent
AND:
SIMON O’DONNELL
Defendant / Applicant
DECISION
Coram: Magistrate L E Campbell
Date: 25 September 2012
DECISION:
1. Leave is granted to the applicant pursuant to s 90AB of the Magistrates Court Act 1930 to cross examine Samuel De Lorenzo and Sarah Redman.
2. Leave is not granted to the applicant to cross examine Detective Senior Constable Michelle Ritchie or Senior Constable Stacey Chalk.
The defendant has pleaded not guilty to one charge which alleges that between 3 December 2010 and 27 December 2010 he recklessly did inflict grievous bodily harm on Bailey O’Donnell. The charge carries a maximum penalty on conviction of 10 years imprisonment and thus is an indictable offence.
At all times since he was first charged the defendant, through his legal representatives, has indicated that he would not consent to the matter being disposed of summarily and therefore a committal hearing was to be held in relation to the charge. While there have been some delays in the matter progressing to the committal stage, I am satisfied that those delays have been the subject of appropriate discussions and communication between the parties and the court.
As part of that committal process the defendant has filed four applications pursuant to s 90AB(2) of the Magistrates Court Act 1930 (ACT) (the Act) seeking leave to cross-examine the following prosecution witnesses:
·Samuel De Lorenzo;
·Sarah Redman;
·Detective Senior Constable Michelle Ritchie; and
·Senior Constable Stacey Chalk.
I do not intend to set out in detail the relevant provisions, or their legislative background, or to consider the history and purpose of committal proceedings, or even to ponder on the limited benefit that can be obtained from examining decisions from other jurisdictions in relation to their versions of ‘paper committals’. That task has already been ably undertaken by Magistrate Burns (as he then was) in Andrew Mark Billing and Stuart Warren Gordon v Timothy Noel Allen (a decision dated 24 June 2009).
I am told that the prosecution has served on the defence a brief of evidence consisting of those witness statements on which it intends to rely at trial. That brief of evidence has not yet been tendered. I have however proceeded on the assumption that copies of all written statements that the informant proposes to tender have been served on the defendant, that they have been served in accordance with the provisions of s 90 of the Act and that they have the appropriate endorsements as required by s 90AA(3).
Ordinarily I would be in a difficult position in assessing the merits of the four applications in the absence of the prosecution evidence. Fortunately the defendant has provided as part of his applications, what he sees as the necessary information and background to enable me to proceed in the absence of the brief. The prosecution has not provided any information for the purposes of my ruling on the applications and therefore I rely entirely on the information provided to me by the defendant. Further, the prosecution did not challenge the content or statements made in the various applications. While I do not necessarily agree with everything that is said in them, particularly the suggestion in one application that parts of the record of interview with Ms Redman were ‘vague and lacking in detail’, it is not necessary for me to comment any further.
The relevant facts as gleaned from the documents provided to me and from the various discussions that have taken place in court during the case management process are, in a nutshell, as follows:
Bailey O’Donnell was born on 3 December 2010. The defendant is her father and Sarah Redman her mother. Bailey was admitted to The Canberra Hospital either on 26 or 27 December 2010 with troubling symptoms. They had first been noticed by Ms Redman after she had left Bailey in the care of the defendant while she went shopping with her mother on Boxing Day 2010. The cause of those symptoms could not be ascertained. A number of tests were undertaken but as I understand it, all they did was rule out various hypotheses as to the possible cause of her symptoms. Tests did however ultimately establish, as I understand the reports, that Bailey had sustained a global ischaemic brain injury (in layman’s terms a lack of blood supply or oxygen to the brain) as well as a subdural haemorrhage (bleeding between the brain and the skull). Her symptoms were significant enough that in late December 2010 she was transferred by air ambulance to the Sydney Children’s Hospital for specialist care.
It was only when Bailey’s treating medical practitioners were informed, around 5 January 2011, that the defendant had told both his mother’s partner, Samuel De Lorenzo, and the baby’s mother Sarah Redman, that he had shaken the baby, that the conclusion of this being the cause of baby Bailey’s “catastrophic brain injury” was arrived at.
The details of the two relevant conversations between Mr De Lorenzo and Ms Redman and the defendant (the relevant conversations) are recorded in:
1. A one page statement of Mr De Lorenzo taken by two NSW police officers on 5 January 2011; and
2. A digital record of conversation conducted by the AFP with Ms Redman on 9 January 2011.
Cross examination as to whether, and how, the defendant shook the baby
10. The defendant seeks leave to cross-examine both Mr De Lorenzo and Ms Redman in relation to the relevant conversations. He asks for the opportunity to explore questions in relation to precisely what admissions he is said to have made to them and what conduct it is said he either demonstrated to either of them, or agreed with them that he had engaged in, when dealing with the baby.
11. In particular the defence indicated that questioning of Mr De Lorenzo would require him to elaborate on the following issues: (see sub paras 10.1 (a) to (e)) of the relevant application)
(a) what type of motion was demonstrated by Mr De Lorenzo to the defendant, when he referred generally to shaking Bailey O’Donnell;
(b) how this motion was demonstrated to the defendant;
(c) how Mr De Lorenzo demonstrated the proposition that Bailey O’Donnell’s head “went back and forwards” to the defendant;
(d) whether Mr De Lorenzo suggested the defendant shook Bailey O’Donnell at any time immediately proximate to the onset of her illness on 28 December 2010, or otherwise (this is the date used by the defendant but it may be a typographical error and should refer to 26 or 27 December 2010);
(e) the terms of the defendant’s purported admission to Mr De Lorenzo, and what demonstration(s) the defendant is said to have agreed to.
12. In relation to Ms Redman, questioning would concentrate on the following issues: (see sub paras 11.1 (a) to (e) of the relevant application)
(a) what words were used by the defendant when he purportedly admitted to shaking Bailey O’Donnell;
(b) whether the defendant demonstrated any motion to Ms Redman, when he referred generally to shaking Bailey O’Donnell. If so, exactly how that motion was demonstrated to Ms Redman;
(c) whether the defendant advised Ms Redman about Bailey O’Donnell’s head going “back and forwards” whilst she was being shaken;
(d) if so, whether the defendant demonstrated any motion to Ms Redman when he referred to Bailey O’Donnell’s head going “back and forwards”, and how that motion was demonstrated;
(e) whether the defendant advised Ms Redman about a point or points in time when he is said to have shaken Bailey O’Donnell.
13. In a written response to the defendant’s four applications the prosecution summarises its case against the defendant as follows:
“that the shaking of baby Bailey was carried out by the applicant (i.e. the physical conduct issue) and that the shaking was the cause of the significant injuries sustained by baby Bailey (i.e. the causation issue).”
The admissions made by the defendant are clearly a central part of the prosecution case.
14. The prosecution concedes that “the brief is a little lacking in relation to the mechanics of how the baby was shaken” and does not oppose leave being granted to the defendant to cross examine the two witnesses in the terms adverted to above. This was an appropriate concession to make. A physical motion demonstrated in a conversation cannot be understood from the bare words recorded in a written statement. By pinning these details down precisely and requiring an actual demonstration of the physical movements engaged in, there is an opportunity for both parties, if they judge it appropriate, to brief expert witnesses to obtain informed opinions as to whether the movements described by the defendant could have caused, or were likely to have caused the symptoms observed in baby Bailey.
15. I am satisfied of the matters referred to in s 90AB(2)(a) of the Act in relation to the evidence of both witnesses and I am also satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of Mr De Lorenzo or Ms Redman on such a pivotal issue to the trial. Leave to cross examine is therefore granted to enable the defence to explore what was said and what was demonstrated in both relevant conversations (as particularised above).
Cross examination as to the reliability of the admissions
16. The defendant also seeks leave to cross-examine both civilian witnesses, but particularly Mr De Lorenzo, in relation to the reliability of the admissions made to them by the defendant in the relevant conversations. This it is argued is necessary to enable his legal advisers to consider before the trial itself whether an application may appropriately be made for the exclusion of those admissions pursuant to sections such as ss 90 or 137 of the Evidence Act 2011 (ACT).
17. By way of background to this part of the applications I have been provided with reports, the contents of which were not challenged for the purposes of these proceedings, which show that the defendant has a long acknowledged and significant intellectual impairment and that he suffers from a major affective disorder which is thought possibly to be bipolar in nature. The defendant seeks to explore the circumstances in which the admissions were said to have been made by him in light of his intellectual functioning deficits, his relationship with his stepfather and Ms Redman, and their knowledge of him and his difficulties.
18. In contrast to the position taken in relation to cross examination about the content of, and the conduct revealed in, the relevant conversations, the DPP submits that such questioning is not supported by the legislative intent behind the applicable statutory provisions. Little detail of what these might actually be was provide although the DPP did submit that issues of reliability of evidence, credibility or unfairness are matters for the trial itself, and are issues that should be determined by the ultimate fact-finder (that is the judge or jury).
19. In his submissions, Mr Wanigaratne on behalf of the DPP, states:
“The Applicant has raised issues of needing to speak to their own medical experts, possibly to counter the claim by the Prosecution that the Applicant’s actions in shaking baby Bailey caused her injuries. The Applicant has indicated that the questions posed to Ms Redman or Mr De Lorenzo, and the answers given, can then be provided to their medical experts for another opinion. Any answers that Ms Redman or Mr De Lorenzo can relay in terms of the mechanics of how baby Bailey was shaken may be relevant for the Applicant’s purposes in getting another expert opinion.
However, any issues relating to the reliability or credibility of their answers would be irrelevant considerations for a medical expert in giving another opinion as to whether the shaking was sufficient to cause the serious injuries suffered by baby Bailey.”
20. I agree that the reliability of the purported admissions is not related to the issue of whether or how the defendant shook Bailey. The separate issue identified by the defendant is the reliability of the admissions he made particularly those to Mr De Lorenzo. The proposed questioning is to determine whether there is a factual basis to challenge the admissibility of the admissions on the grounds of unfairness under a provision such as s 90 of the Evidence Act. This I infer would be on the basis that matters such as the nature of the questioning, the tone of voice adopted by Mr De Lorenzo, or the manner of his questioning somehow resulted in oppression of the defendant’s will which in turn raises some doubt as to the reliability of his admissions. While I would not grant leave for this line of cross examination if this were no more than a mere fishing expedition, it seems to me that there is some evidence, albeit not particularly cogent at this stage of the proceedings, that raises this as a potential issue at trial.
21. If the exploration of this issue is left to the trial it may necessitate an application for an adjournment mid-hearing to enable the defendant to engage experts to comment on the evidence as elicited, and to provide an opinion as to whether there is any basis for a claim that the defendant’s will was overborne – by the nature of the manner adopted by his “questioner” for example. Alternatively once the witnesses have been heard the defendant may come to the conclusion that there are no grounds for making such an application in the Supreme Court.
22. Mr Wanigaratne quite rightly pointed out that whether s 90 operates to exclude the challenged evidence is not a matter for me to determine. I agree it is arguable that the issue could be left to be determined at the trial. Ultimately, on balance, I am satisfied that it is not in the interests of justice to do so. The witnesses are to be brought to court for cross-examination in any event and on the evidence provided to me thus far (I acknowledge all of it comes from the defendant) exclusion of any evidence of the admissions would mean the end of the prosecution case. It appears to me that the information to be elicited in cross examination may indeed be of benefit to both parties in their preparation for trial. A short period of time allocated in this court for additional cross examination may save considerable time in the Supreme Court.
23. I am satisfied of the matters referred to in ss 90AB(2)(a) in relation to the second part of the applications relating to Mr De Lorenzo and Ms Redman. I am also satisfied that the interests of justice cannot adequately be satisfied by leaving the proposed cross-examination to the trial particularly in the unusual circumstance of this matter where both witnesses are to be called to be cross examined in any event on a very closely related issue (s 90AB(2)(b)).
24. Accordingly the defence is also granted leave to cross examine Mr De Lorenzo in relation to the circumstances in which the conversation between him and the defendant took place – namely the matters referred to in sub paras 11.1(a) to (e) of the relevant application:
(a) the precise terms of any questioning of the defendant by Mr De Lorenzo;
(b) the length of questioning between the defendant and Mr De Lorenzo;
(c) the tone and manner of speech adopted by Mr De Lorenzo when speaking with the defendant;
(d) Mr De Lorenzo’s attitude or demeanour towards the defendant during the conversation; and
(e) Mr De Lorenzo’s knowledge, general or specific, in relation to the defendant’s state of mind; his mental health; his general intelligence; his education; his vocabulary; and his articulation at the time of the questioning.
25. And similarly, the defence has leave to cross examine Ms Redman in relation to the matters referred to in sub paras 12.1(a) to (g) of the relevant application:
(a) the precise terms of any questioning of the defendant by Ms Redman;
(b) the length of conversation between the defendant and Ms Redman;
(c) the tone and manner of speech adopted by Ms Redman when speaking with the defendant;
(d) Ms Redman’s attitude or demeanour towards the defendant during the conversation;
(e) whether Ms Redman had any discussion with Mr De Lorenzo concerning the alleged admissions either prior to or subsequent to her discussion with the defendant;
(f) whether Ms Redman had any discussion with Mr De Lorenzo concerning the alleged admissions prior to participating in her taped record of conversation with members of the AFP; and
(g) Mr Redman’s knowledge, general or specific, in relation to the defendant’s state of mind; his mental health; his general intelligence; his education; his vocabulary; and his articulation at the time of the questioning.
Applications to cross examine NSW Police Officers
26. The police officers undertook the relatively mechanical task of recording Mr De Lorenzo’s statement. They played no other role in the investigation. Their evidence is not sufficiently relevant or related to the issues for it to be in the interests of justice for them to be cross examined at the committal. Anything either of them say can only be a repetition of what was said to them by Mr De Lorenzo who is to be called to be cross examined at the committal. Leave is therefore refused in relation to the applications to cross examine Detective Senior Constable Michelle Ritchie or Senior Constable Stacey Chalk.
I certify that the preceding 26 paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Magistrate Campbell.
Associate:
Date: 25 September 2012
Counsel for the Applicant: Mr J Pappas
Solicitor for the Applicant: Ben Aulich & Associates
Counsel for the Respondent: Mr C Wanigaratne
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 3 September 2012
Date of judgment: 25 September 2012
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