MJA v Police

[2012] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

MJA v Police [2012] QMC 11

PARTIES:

MJA

(applicant)

v

POLICE

(respondent)

FILE NO/S:

MAG-00089591/11(2)

DIVISION:

Magistrates Court

PROCEEDING:

Application to cross-examine witnesses in Committal Proceedings

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

30 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2012

MAGISTRATE:

Callaghan CJ

ORDER:

The application is granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE –COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – inadequate police investigation- sexual offences - affected child witness – interest of justice cannot adequately be satisfied by leaving cross-examination to trial – vulnerability of children – undesirability of calling a child as a witness – preliminary complaint witnesses.

Justices Act 1886 (Qld), s 83A(5AA), s 110B

Evidence Act 1977, s 21A, s 21AD, s 21AG, s 9E

Criminal law (Sexual Offences) Act 1978, s 4A

COUNSEL:

M Harrison for the applicant

B Heasley (sergeant) for the respondent

SOLICITORS:

Smith and Associates for the applicant

Respondent on own behalf

1. MJA is charged with one count of rape where the complainant is RAL, and one count of sexual assault and one count of common assault where the complainant is LKE.

1. The applicant, through his Counsel, wishes to cross-examine both complainants together with two prior complaint witnesses Felicity Holloway and Merriam Underwood. In his application the applicant initially also sought to cross-examine Ashleigh Jordan. That part of the application did not proceed.

1. The complainant RAL was born on 10 June 1994. The complainant LKE was born on 13 July 1994. These offences are alleged to have taken place on 24 May 2011 hence both complainants were 16 at the time of alleged commission of the offences and 16 at the time of the arrest of the defendant which occurred on 25 May 2011.

1. The evidence in a general sense is that on 24 May 2011 the two complainants travelled with the defendant to Russell Island arriving there about mid afternoon. The complainants were supplied with and consumed alcoholic beverages and some cannabis. The two complainant girls ultimately went to bed in order to sleep in the same bed and the defendant followed them in there. The complainant RAL says that she woke up with the defendant naked beside her. He tried to get on top of her, he was threatening both of them and ultimately she says she had to do it. The “it” was never explained by her.

1. The complainant LKE says that after the defendant followed them into the bedroom he talked to them for about an hour. He put his hands on her leg and started to move it towards her vagina. She says that she and the other complainant got into bed and cuddled up to each other but she could feel the defendant taking his clothes off behind her. She says the defendant went to the other side of the bed, stood over the other complainant with his legs open and said “suck my dick”