MJA v Police
[2012] QMC 11
•30 April 2012
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
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.
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.
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.
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.
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” and made other threats. She said she observed the defendant put his penis into the other complainant’s mouth.
After this she says that the defendant kept on trying to touch her (LKE), touching her leg, putting his hand in her panties and trying to put his fingers into her vagina. She says he also touched her breasts.
This touching is alleged by the Crown to be the particulars of the sexual assault charge. The rape is alleged to be the placing by the defendant of his penis into the mouth of the other complainant and the common assault allegedly occurs later when the witness LKE says that when they left the house a little later on with the defendant saying that he would take them for a drive he grabbed her by the scruff of her shirt and pulled her around a bit.
The defendant drove them to a lady’s house. This was the witness Merriam Underwood. Whilst at that house Ms Underwood says that both complainant girls made complaints to her that the defendant had threatened them.
After an altercation with Ms Underwood’s partner Mr Jordan, the defendant left. After he had left, the two complainant girls left on foot. They came to Felicity Holloway’s residence at about 2 am where complaints were made to her that the defendant had made one of them give him oral sex and that he had threatened them both.
The complainants RAL and LKE
Affected Child Witnesses
Division 4A of the Evidence Act 1977 (“Evidence Act”) concerns the evidence of affected children. Section 21AD of the Evidence Act defines a child as being an individual who is under 16 years when the defendant in the proceeding is arrested or an individual who is 16 or 17 years (the age of both of these complainants) when the defendant is arrested in the proceedings and who is a special witness. A special witness is defined in s 21A of the Evidence Act as, inter alia, being a person who in the court’s opinion would, as a result of a mental, intellectual or physical impairment or a relevant matter[1] be likely to be disadvantaged as a witness or would be likely to suffer severe emotional trauma or would be likely to be so intimidated as to be disadvantaged as a witness.
[1]Relevant matter is also defined in s 21A as meaning “the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject-matter of the evidence or any other matter the court considers relevant.”
For the purpose of this application the defence accepted that the complainants were both children within the meaning of the term “child” pursuant to s 21AD of the Evidence Act as they were 16 of years of age and special witnesses.
I agree that they would each, as a result of a relevant matter, being their age and the nature of the subject matter of the evidence that they would have to give in these proceedings, be likely to be disadvantaged as a witness and therefore are special witnesses and as they were 16 at the time of the defendant’s arrest and 17 now are both therefore children within the meaning of the term child in s 21AD of the Evidence Act.[2]
[2]If this application was being made after 10 June 2012 then RAL would have turned 18 and the application would have to be for a direction under s 83A(5AA) of the Justices Act 1886, likewise if it were made after 13 July 2012 then LKE would have turned 18 and the application would have to be made concerning her under s 83A(5AA) because s 21AD(2) of the Evidence Act provides that an individual remains a child for the purposes of giving evidence at any time before the child turns 18.
As it is likely that Committal proceedings will be concluded prior to 10 June 2012 the application that the court requires the complainants to be called as witnesses is therefore to be determined pursuant to s 21AG of the Evidence Act. That section provides that at a direction hearing the magistrate must not require the child to be called as a witness for cross-examination unless satisfied that:
1. the defendant:
(a) has identified an issue to which the proposed questioning relates; and
(b) provided a reason why the evidence of the child is relevant to the issue; and
(c) explained why the evidence disclosed by the prosecution does not address the issue; and
(d) identified the purpose and general nature of the questions to be put to the child to address the issue; and
2. the interests of justice cannot adequately be satisfied by leaving cross-examination of the child about the issue to the trial.
Onus of proof
The onus of satisfying the court of these matters is on the defendant.
Special provisions concerning children
I am not of the view that s 9E of the Evidence Act applies to these 2 witnesses as child is defined to mean a child under 16 years in that section.
S 21AG(5)(b) however provides that the magistrate “must have regard to the vulnerability of children, the general principles stated in section 9E and the undesirability of calling a child as a witness for a committal proceeding.” Notwithstanding that these 2 witnesses are not children as defined in s 9E I still must have regard to the vulnerability of them as they are defined by s 21AD as being children for the purposes of the division in which sits s 21AG and of the undesirability of calling them as children as witnesses for a committal proceeding.
This application
At 4.30 am on 25 May 2011 Detective Penny Anderson then of the Child Protection and Investigation Unit at Wynnum commenced to interview the complainant RAL. This was about two and a half hours after the complainants had presented themselves at the front door of Felicity Holloway’s residence in her words looking extremely scared.
In the interview Detective Anderson asked her what happened. She said “That they went over to the island to assist the defendant renovate his house. Before doing so they went down to Victoria Point, he purchased some marijuana and took us to the shops gave them money for food and went to the pub.” She says that they went to bed and she just woke up with him naked beside her. She says he told her to shut up, tried to get on top of her and that’s when her friend LKE woke up and he was threatening them. She said it got to the stage where she “had to do it”. After going through the car drive and some other matters that happened after the alleged rape Detective Anderson commenced to ask her some further particulars of what occurred in the lead-up to them going to bed. At that point a telephone rang and the interview concluded. Unfortunately it seems that Detective Anderson did not go back to the complainant to ask her for more particulars of what occurred after they went to bed including what the “it” was. It is also unfortunate that no one from the investigating officers through to the prosecution have thought to obtain an addendum statement from this complainant.
The defendant seeks to cross-examine both complainants on the following issues:
1. Why they were on the island;
2. Their consumption of alcohol and cannabis;
3. Their narratives of the lead up to the offences;
4. The particulars of their complaints to the witnesses Holloway and Underwood.
Why on the island
RAL said in her s 93A interview[3] that the defendant was going over to Russell Island for work and that she and her friend LKE were bored so they asked if they could tag along and that they would rip up the carpet in a house over there that the defendant was renovating. By contrast LKE said in her statement[4] that prior to going over to the island the defendant told them that they had a job as he wanted them to work for him waitressing, cooking and cleaning in a restaurant on another island. The two statements are not necessarily inconsistent as LKE’s statement doesn’t give this job as the reason for travelling to the island.
[3]Lines 108 - 112
[4]Paragraphs 4 - 5
It is clear from the argument of the defendant that the questioning of the complainants on this issue will simply go to their credit and reliability as witnesses. I am not satisfied though that the interests of justice cannot adequately be satisfied by leaving cross-examination of either about this issue to the trial, if there be one. They may agree on the reason for being on the island and they may disagree on it. If so counsel at trial can make of the inconsistency what he will before the jury in his address. There is no prejudice to the defendant in not knowing prior to trial whether or not there will be an inconsistency on this issue. It is not one which will lead to a dismissal of the charge at committal.
Consumption of alcohol and cannabis
RAL said in her s 93A interview[5] that they went down to Vicky Pt and he (the defendant) bought marijuana[6] and he took them to the shops, gave them money to get food and he went to the pub and then they went back to the boat and got back over here (Russell Island) and had a few drinks (Bundaberg Rum and coke purchased by the defendant[7]). She said she had one such drink in the defendant’s car at about 3.00pm and then another 2 such drinks roughly between 4.30pm and 6.00pm at the defendant’s place[8]. She said that as a result of the alcohol she felt sick and horrible and that LKE had a panic attack and a little trip outfit (sic)[9].
[5]Lines 113 - 116
[6]Confirmed in lines 262 - 265
[7]Lines 312 - 324
[8]Lines 329 - 345
[9]Lines 346 - 348
On this issue LKE said in her statement that the defendant was giving them Bundaberg Rum and coke at his house. She said that he was giving them lots of drinks, giving her more drinks then RAL and he was also giving them dope. She said they would have been drinking and smoking for about 2 hours. She said that RAL had a couple of drinks and a couple of cones. She said that she started to feel drunk and high from the alcohol and weed. She said she was really bad but that RAL was nowhere as bad as her[10].
[10]Paragraphs 9 - 12
The defendant wishes to cross-examine the complainants about their consumption of alcohol and cannabis and how it would have affected their memories of the events that followed. The prosecution argues that the cross-examination is not necessary as there is enough particularity in the amounts the complainants said they had to drink and there is no great inconsistency in what either said on this issue.
The defendant hasn’t particularised in this application as to whether he will be arguing that the rape and assaults simply didn’t occur or whether the sexual acts did occur but they were with the consent of the complainants. And he doesn’t have to particularise it at this stage of the proceedings. The issue of the amounts of intoxicating substances consumed by each complainant and how it affected each of them in their own view and in the view of the other is an issue which will go directly to the reliability of each complainant as a witness to the alleged offences against each of them. Further particulars may be able to be given by each complainant as to what she consumed and as to what the other consumed and each may be able to say with further particularity as to how she and how the other was affected by the substances. This issue goes directly to their reliability as witnesses. The defendant is entitled to know with particularity what the complainants are going to say on this issue prior to trial. The defendant may wish to see if he can obtain an expert’s opinion on how this consumption of alcohol and cannabis would affect a person of the complainants’ age and physical attributes. The amount of alcohol and cannabis consumed would be a necessary ingredient in the preparation of such an opinion. I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the complainants about this issue to the trial and will allow each complainant to be cross-examined on this issue at committal.
The lead up to the offences
RAL said in her s 93A interview[11] that they went to bed and she just woke up with the defendant naked right beside her, he told her to shut up, he tried to get on top of her and that’s when LKE woke up and she started screaming at him and he told her to fuck up and then he was being threatening to them and she indicated to LKE (though she doesn’t particularise how) that she (RAL) would have to do it otherwise he would hurt them and it got to the stage where she had to do it.
[11]Lines 118 - 126
LKE said in her statement[12] that when they were drinking and smoking that the defendant said that they were hot and that he wanted to do stuff with them. The defendant wanted to have sex with them and he told LKE that he loved her. She said she and RAL went into the bedroom as they were tired. The defendant followed and talked with them for about an hour. She doesn’t say what about or what was said. RAL doesn’t talk of this at all. LKE further said in her statement that the defendant was alright in the bedroom but then changed. He started to touch them, he put his hand on her leg and started to move it up towards her vagina on which she stood up and said “I am tired and I want to go to bed”. She said that she and RAL got into bed and cuddled up with each other as they were scared. The light in the room was on and she saw the defendant remove his clothes. His penis was erect. She said she saw him go to the other side of the bed and stand over RAL with his legs open saying to RAL “Suck my dick” and “If you don’t do it I will kill you and get you bashed, you will disappear as I know people. I could go right now kill you and put you through a mincer.” and “I am going to rape you”. and “It’s a trust thing.” She said that RAL said “I don’t want to do it in front of (LKE), if I have to do it I will do it with her out of the room.” LKE said she didn’t leave the room and watched as the defendant lay next to RAL and force her head into his groin and put his penis into her mouth upon which she turned away.
[12]Paragraphs 13 - 23
The defendant argues that there are inconsistencies in these 2 versions. The prosecution argues that there is no great inconsistency. There is some inconsistency such as RAL saying that LKE woke up implying that LKE was asleep and LKE doesn’t say that she slept before the alleged rape. Also RAL simply doesn’t give any evidence in her statement as to the lead up to the defendant being naked right beside her. She wasn’t asked for any particularity. The lead up to the commission of the alleged offences is important in the facts of this case as the issue of consent coupled with the possible mistake of that fact[13] by the defendant will undoubtedly be an important issue on any trial. The defendant is entitled to know with particularity what the complainants are going to say on this issue prior to trial. I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the complainants about this issue to the trial and will allow each complainant to be cross-examined on this issue at committal.
[13]S 24 Criminal Code
Preliminary complaints
RAL said in her s 93A statement[14] that after the alleged offences the defendant drove them to the house of a lady (Ms Underwood). There they had a wine. There she said they told Marilyn “the rest of the stuff that happened”. She said that after an argument and a fight between the defendant and the 2 occupants of the house the defendant left. She said[15] they left after a while and ran across the gravel road until they found a house with a light on and there a nice lady (Ms Holloway) and a man took them in and contacted the police. She doesn’t say what she told Ms Holloway about the alleged offences if anything.
[14]Lines 154 - 169
[15]Lines 184 - 188
LKE in her statement doesn’t mention either of them saying to Ms Underwood what had occurred earlier, saying[16] that Ms Underwood asked her if she was alright to which she replied that she was even though she wasn’t. After the fight between the defendant and Ms Underwood’s partner they left and ran to some houses knocking on doors of each until one answered. That was Ms Holloway. She doesn’t say that either of them told Ms Holloway what had happened.
[16]Paragraph 41
S 4A of the Criminal law (Sexual Offences) Act 1978 provides that evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence is admissible in evidence regardless of when it was made. Whilst at trial a judge mustn’t suggest that the complainant’s evidence is more or less reliable only because of the length of time elapsed before the making of the complaint, the trial judge may make any comment to a jury on the complainant’s evidence that is appropriate to make in the interests of justice. A defendant should be made aware of what a complainant has said in a complaint made soon after the alleged offending behaviour. An accurate recitation by the complainants as to what happened to two strangers would be strong, and almost devastating (to the defence), evidence in the prosecution case. As the s 93A statements by either complainant do not particularise what was said to the preliminary complaint witnesses, I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the complainants about this issue to the trial and will allow each complainant to be cross-examined on this issue at committal.
Preliminary complaint witnesses
The defendant also seeks to cross-examine another 2 witnesses, Felicity Holloway and Merriam Underwood. These are both adults. Hence the defendant’s application is pursuant to s 83A (5AA) and s 110B of the Justices Act 1886 (“Justices Act”).
Section 110B(1) of the Justices Act provides:-
“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 onus of proof
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 or be made available for cross-examination on a written statement is on the defendant.[17]
[17]See Police v ED [2011] QMC 3 at paragraph 5 and the cases referred to therein.
Substantial reasons why in the interest of justice
There have now been many judgments of this court discussing this phrase.[18] All of these judgments follow the judgments and reasoning in the decision of Studdert J in Hanna v Kearney and Another[19] and the decision of the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and Another[20] which cited the judgment of Studdert J in Hanna v Kearney with approval. In summary those judgments gave the following guidance:-
[18]For example see BJG v Police [2011] QMC 001; Police v K [2011] QMC 002; Police v ED [2011] QMC 003; Police v DWB [2011] QMC 004; KD v Police [2011] QMC 005; Police v NM [2011] QMC 010; Police v CM [2011] QMC 014; Police v HJW [2011] QMC 019; Police vBCR [2011] QMC 029; Police v KA [2011] QMC 039 and PJK v Police [2011] QMC 043.
[19][1998] NSWSC 1026 (28 May 1998); BC9803179
[20](1998) 44 NSWLR 618
1. Committal proceedings are not there to provide an opportunity for a full dress rehearsal for trial with the primary aim of the legislation being to limit the time occupied by them;
2. There can be no rigid or exhaustive definition of what constitutes “substantial reasons” which may vary from case to case. The application to cross examination requires identification and consideration of the objective of the cross examiner and the frame work of the prosecution case. To require a witness to be cross-examined without a definite aim but in the hope of eliciting some evidence that might prove useful would not constitute “substantial reasons”;
3. It would be wrong to limit “substantial reasons” to situations where the cross-examination is likely;
(i) to result in grounds for a no true bill application or a discharge of the defendant; or
(ii) is likely to substantially undermine the credit of an important witness.
4. On any application the fundamental objective of committal proceedings must be born in mind; namely the objective of facilitating a fair 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 help by a witness but these instances are not exhaustive.
5. Substantial reasons may be shown where cross-examination may lead to the narrowing of matters in dispute, a matter of particular importance where the prospect exists of a lengthy trial.
Ms Underwood said in her statement[21] that both girls said that the defendant “was forcing us to do sexual things. If we didn’t give him a head job then he would smash us and bash us and punch our heads in.” She didn’t nominate who said what.
[21]Paragraph 10
Ms Holloway said in her statement[22] that the dark haired girl said that the defendant had physically attacked her outside; the other girl said that he made her give him oral sex while the other girl held her hand plus other things about the lead up and the threats allegedly made by him.
[22]Paragraphs 9 - 11
As said earlier S 4A of the Criminal law (Sexual Offences) Act 1978 provides that evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence is admissible in evidence regardless of when it was made. Whilst at trial a judge mustn’t suggest that the complainant’s evidence is more or less reliable only because of the length of time elapsed before the making of the complaint, the trial judge may make any comment to a jury on the complainant’s evidence that is appropriate to make in the interests of justice.
Also as said earlier a defendant should be made aware of what a complainant has said in a complaint made soon after the alleged offending behaviour. An accurate recitation by the complainants as to what happened to two strangers would be strong, and almost devastating (to the defence), evidence in the prosecution case.
Given the overall inadequacies of the investigation in this case it is likely that both Ms Underwood and Ms Holloway will be able to provide more particulars of who said what to them in the way of preliminary complaints. Their observations of the demeanour of the complainants is also another matter that the defendant and the prosecution should be appraised of prior to trial. Their presentation to the preliminary complaint witnesses of being frightened is important evidence. If they presented to them as having been adversely affected by some intoxicating substance, the value of their evidence may be lessened. The defendant should be made aware of this prior to trial. I am satisfied that there are substantial reasons, why, in the interests of justice that both Ms Underwood and Ms Holloway should be cross-examined as to the particulars of the statements made to them by each of the complainants and the demeanour of the complainants when making such statements.
ORDERS
Pursuant to s 21AG of the Evidence Act 1977 I require the prosecution to call the children RAL and LKE as witnesses to be cross-examined on the following issues:
1. The amount of alcohol and cannabis consumed by each of them and the time of consumption and how such consumption affected each of them;
2. The events on the island in the defendant’s house leading up to the alleged commission of the offences;
3. What each of them said to Ms Underwood about the alleged offences; and
4. What each of them said to Ms Holloway about the alleged offences.
Pursuant to s 83A(5AA) of the Justices Act 1886 I direct that the prosecution call Ms Underwood and Ms Holloway to be made available for cross-examination on their written statements on the following issues:
1. What RAL said to them about the alleged offences; and
2. What LKE said to them about the alleged offences.
C Callaghan
Magistrate
0
2
3