Moon v Commissioner of Police
[2012] QMC 21
•7 September 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Moon v Commissioner of Police [2012] QMC 21
PARTIES:
Joshua Dane MOON
(Applicant)
v
Commissioner of Police
(Respondent)
FILE NO/S:
MAG-00139051/11(4)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to cross-examine a witness in a committal
proceeding
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
7 September 2012
DELIVERED AT:
Southport
HEARING DATE:
30 August 2012
MAGISTRATE:
Costanzo JJ
ORDER:
APPLICATION REFUSED
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE –
COMMITTAL PROCEEDINGS – APPLICATION TO
CROSS-EXAMINE WITNESSES – substantial reasons -
interests of justice – identification evidence – assistance to court by counselJustices Act 1886 (Qld), s 83A(5AA), s 110B, s 110C
COUNSEL:
P Lancaster of Counsel for the Applicant
K Johnson, Senior Constable for the Respondent
SOLICITORS:
Odens Legal, Solicitors for the Applicant
Respondent on own behalf
The Application
An application is made under s 83A(5AA) of the Justices Act 1886 for a direction that 26 named prosecution witnesses be required to attend to be cross-examined upon committal proceedings.
The Applicant/Defendant is charged under section 317A of the Criminal Code with two counts of acts (unlawful wounding) intended to maim (in relation to the complainants Zac Peter Hoogervorst and Michael Jon Richardson) and one count under section 69 of the Criminal Code of going armed in public so as to cause fear (in relation to the complainant Travis Angelo Corbo). All offences are alleged to have happened on 13 August 2011 at Bilinga on the Gold Coast in the State of Queensland.
The Crown will allege that on the evening of the 13 August 2011 several of the witnesses had attended an engagement party on the balcony at the North Kirra Surf Club. There were approximately 60 invited guests. The prosecution case will be that the defendant and another male person were evicted from another area of the club during the celebrations and that later that evening a melee erupted outside the surf club which involved a number of persons who had attended the party and a number of other persons, including the defendant. There were several scuffles in various locations in close proximity of each other. The defendant and others were seen to come and go from an apartment across the road from the Surf Club. Michael Richardson stated that he heard a female screaming from the direction of a park to the north of the surf club. He walked in that direction and was hit from behind to left side of his face with a bat. He fell to the ground and wrestled with the person who had the bat. He then saw four males run from the unit across the road towards the surf club. He felt a stab to his right shoulder and to the left side of his back from behind. He got to his feet and with his left arm he blocked a further blow from the man he later identified from the photoboard as Joshua Moon, who was wielding a 30cm knife. The Crown case is that the stabbing of Richardson was witnessed by others including Travis Corbo who also identified the defendant in a photoboard. He also corroborates Richardson’s account of the defendant running back to the apartment block across the road after seeing the stabbing to the base of his neck. Shaun Brierley observed Hoogervorst wrestle with a man holding a bat and then saw another man wielding two knives stab Hoogervorst in the back of the neck. He did not identify the defendant from photoboards but instead identified one Leroy Dodds as being similar to one of the males. Brendan Hagley did identify the defendant Moon as the person he says he saw stabbing Hoogervorst in the back of the neck.
The applicant’s outline of argument is contained in the ‘defendant’s communication’ to the prosecution sent pursuant to section 110B(3)(a) of the Justices Act 1886. It lists 26 witnesses who are sought for cross-examination and then submits:
“Pursuant to s 110B(1) of the Justices Act, we are of the opinion that there are substantial reasons why, in the interests of justice, the abovementioned witnesses should be made available for cross-examination.
All of the prosecution witnesses required for cross-examination have made statements describing the activities of two or more men carrying knives in a brawl outside the North Kirra Surf Lifesaving Club on 13 August, 2011. It is alleged that the Defendant is one of those men. No listed prosecution witness knows the Defendant. There are major inconsistencies in the witnesses’ identification of the men carrying knives and in some cases which one of those men actually stabbed one or both of the complainants.
The Defendant did not take part in a Record of Interview and made no admissions. The purpose of cross-examination is to clarify and complete the witnesses’ identification of the offender. This may shorten the trial to avoid any need for a Basha enquiry. The issues raised for each witness can only be resolved by cross-examination.”
While no listed prosecution witness knew the Defendant, the evidence tendered by the prosecution also contains evidence that the defendant’s DNA was located on the door strip of unit 1/44 Pacific Parade, Bilinga where he was seen to exit and, more importantly, the victim Michael Richardson’s DNA (from blood) was located on the Adidas shoes, socks and Fila shorts worn by the defendant Joshua Moon. A tribunal of fact would be entitled to draw the inference that Moon and Richardson came into contact with each other.
Following the above quoted submission, under the heading of each witnesses’ name, the outline lists a short description of the evidence offered by the witness (but only according to what they stated in their statements). Then the outline states whether or not that witness was shown a photoboard and whether or not the witness identified anyone. Then, repeatedly in respect of each witness, there is the following generic submission:
“It is submitted that there are substantial reasons, in the interest of justice for the witness to be made available for cross-examination for the defence to have a proper understanding of the prosecution case and to clarify and complete the identification of the knife wielding man or men by questioning on the following characteristics of the man:
(a)shirt/no shirt
(b)long/pants/short pants
(c)shoes;
(d)tattoos;
(e)hair colour and length;
(f)beard/clean shaven;
(g)skin colour;
(h)weight skinny/solid;
(i)number of knives carried;
(j)height;
(k)age;
(l)photo identification.”
Then, in relation to each witness a short ground is stated that the person should be questioned either because the witness gave an inadequate description, that it is supposedly unclear what the role was of the person identified, or that the witnesses’ statement is inconsistent with someone else’s statement and that it is sought to resolve that conflict, and that the cross-examination is required to “clarify and complete” the person’s identification evidence. By “complete” in this context Mr Lancaster said he means that the evidence will either inculpate or exculpate the defendant. By “clarify” the submission states clarification is sought by using the characteristics listed.
Relevant law
From 1 November 2010 the Justices Act 1886 (Qld) was amended by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Act No. 26 of 2010) (also known as the ‘Moynihan reforms’).
As amended section 83A now provides as follows:
83A Direction hearing
(1) This section applies to a proceeding for an offence.
(2) A magistrate, on his or her own initiative, may direct the parties to the proceeding to attend at a direction hearing.
(3) A party to the proceeding may apply to a court, in the approved form, for a direction hearing. …
Subsection (5AA) states:
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.
Subsection (5AB) states (inter alia) that subsection (5AA) applies “subject to section 110B”.
Subsection (6) provides that a “direction is binding unless a magistrate, for special reason, gives leave to reopen the direction”. Subsection (7) provides that a “direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence”.
As subsection (5AB) stated that subsection (5AA) applies subject to section 110B, I proceed to also state relevant content from section 110B:
“110B Special provisions applying to a direction under s 83A(5AA)
(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.
Note—
Under section 83A a magistrate, on the magistrate’s own initiative, may direct the parties to a proceeding to attend at a direction hearing. Also, under that section, a party to the proceeding may apply to a court, in the approved form, for a direction hearing.
(2) An application in relation to the maker of a particular written statement may be made only once unless a magistrate gives leave for a subsequent application to be made on the basis of special reasons considered by the magistrate to exist.
(3) An application for a direction under section 83A(5AA) may be made only if—
(a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following—
(i) the name of the maker of the written statement the subject of the application;
(ii) the general issues relevant to the making of the application;
Examples of general issues—
identification evidence, expert opinion evidence
(iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence;
(iv) a time (the nominated time) for the prosecution to respond to the defendant’s communication; … .” (my emphasis).
Restrictions on cross-examination
Section 110C is also relevant to these matters. In considering an application under section 83A I believe it is relevant to consider the possible ramifications of making, or not making, an order directing that a witness be made available for cross-examination. Section 110C imposes a limitation on cross-examination.
Subsection (1) provides,
"If a witness attends before the Justices because of a direction given, on application by the defendant, under section 83A, subsection (5AA), requiring the prosecution to call the witness, the Justices must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the Magistrate for requiring the person to attend."
It seems that the effect of the relevant provisions is that once the witness is called, the Court must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the Magistrate for requiring the person to attend.
Subject to statutory and Common Law restrictions or prohibitions on cross-examination, a Magistrate may only allow cross-examination of the witness on other issues not relevant to the reasons given by the Magistrate for requiring the person to attend. If satisfied, there are further substantial reasons for doing so.
The only authority referred to by either party was Police v DWB [2011] QMC 4 per the Chief Magistrate Judge Butler, delivered on 3 May 2011 at Brisbane. That case, which was followed and applied by me in Archer v Police [2011] QMC 54, establishes at paragraph [7] that “the Court may not require a witness to appear and be examined unless either a direction has been given under section 83A(5AA) or the prosecution and defence both agree to that course”.
Police v DWB, at paragraph [10], is also authority for the principle that the applicant bears the burden of satisfying me that there are substantial reasons in the interests of justice for requiring the witnesses to attend. Support for that view is found also in the New South Wales authorities and has been adopted in this Court[1].
[1] See Sim v Magistrate Corbett [2006] NSWSC 665 at [20]; followed also in Blacklidge v Police [2011] QMC 007 per Deputy Chief Magistrate Hine.
“Substantial reasons, in the interests of justice”
Turning to the meaning of ‘substantial reasons in the interest of justice’; clearly, as I said in Archer’s case the reasons of substance for calling a witness may be many and varied, and may vary from witness to witness and from case to case. What is substantial and in the interests of justice in relation to one witness may not be so for another witness. What is substantial and in the interests of justice in relation to one case may not be so in another case.
There are many cases from New South Wales and now in Queensland which must direct and guide my decision-making here today. In New South Wales, sections 91 and 93 of the Criminal Procedure Act 1986 and their predecessor, section 48E[2] of the Justices Act (NSW) in fact had two separate tests, one being the special reasons test for allowing cross examination in cases involving violence and the other being the substantial reasons test for allowing cross examination in all other cases.
[2] Section 48E relevantly provided:
Because special reasons provided the higher standard, then anything found to be special must also be substantial. The greater includes the lesser, so all the New South Wales cases may potentially provide relevant authority and persuasive guidance to this Court.
Therefore, all the NSW cases which interpret these sections are potentially relevant and persuasive.
In relation to the similar provision in 48E of the Justices Act (NSW)) in Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions [3](30046/98; 11156/98, judgment delivered on 28 May 1998, unreported), at pages 11 to 12, Studdert J held:
[3] Hanna v Kearney was followed and applied in in BJG v Police [2011] QMC 001 per Hine BP, Deputy Chief Magistrate. See also Police v DWB [2011] QMC 004 per Judge Butler SC, Chief Magistrate; KD v Police [2011] QMC 005 per Hine BP, Deputy Chief Magistrate; Blacklidge v Police [2011] QMC 007 per Hine BP, Deputy Chief Magistrate; Police v HJW [2011] QMC 019 per Judge Butler SC, Chief Magistrate; Police v Murphy [2011] QMC 023 per Judge Butler SC, Chief Magistrate; Police v BCR [2011] QMC 029 per Judge Butler SC, Chief Magistrate; Police v Cain [2011] QMC 047 per Judge Butler SC, Chief Magistrate; and Police v Zapala [2011] QMC 048 per Judge Butler SC, Chief Magistrate;
“It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s48E:
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 s48E 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 (1992) 59 SASR 404 at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases.”
While examples are given, in section 110B, subsection (3) of the Queensland Justices Act, of the types of general issues which could be relevant to the making of an application, such as identification evidence or expert opinion evidence, no examples at all are given in the amendments of the types of reasons which an applicant may rely on to justify the calling of the maker of the written statement to give oral evidence. However, the Magistrate is to be satisfied that the reasons are both substantial and in the interests of justice.
From the New South Wales cases that have been considered and applied in Queensland, we can distil a number of guiding principles. The types of reasons which could be stated in a given case might include, but are not limited to:
1. That the cross-examination will raise a reasonable prospect that the defence will be able to submit that the evidence is not sufficient to put the defendant on trial.
2. That cross-examination of a significant witness is likely to significantly undermine his or her creditability.
3. That cross-examination of the witness is necessary to avoid the defendant being taken by surprise at the trial by information that cannot await its discovery at the trial.
4. That there is a reasonable prospect that cross-examination in relation to certain evidence may give rise to a discretion or decision to rule the evidence inadmissible at the trial. See DPP v. Losurdo [1998] 44 NSWLR 618 at 620[4].
5. For a proper understanding of the nature of the prosecution case.
6. For an understanding of the basis of a relevant opinion held by a witness, and
7. Cross-examination may lead to the narrowing of matters in dispute particularly where the prospect exists of a lengthy trial.
[4] Losurdo was followed and applied in BJG v Police [2011] QMC 001 per Hine BP, Deputy Chief Magistrate. See also Police v K [2011] QMC 002; Police v DWB [2011] QMC 004 per Judge Butler SC, Chief Magistrate; KD v Police [2011] QMC 005 per Hine BP, Deputy Chief Magistrate; Police v HJW [2011] QMC 019 per Judge Butler SC, Chief Magistrate; Police v Murphy [2011] QMC 023 per Judge Butler SC, Chief Magistrate; Police v BCR [2011] QMC 029 per Judge Butler SC, Chief Magistrate; Police v Cain [2011] QMC 047 per Judge Butler SC, Chief Magistrate; and Police v Zapala [2011] QMC 048 per Judge Butler SC, Chief Magistrate; and Archer v Police 2011] QMC 054.
Relevant and necessary considerations
As I said in Archer’s case, the stated reasons for possibly allowing cross‑examination in each case have to be weighed with the following considerations:
1. The Magistrate must be satisfied that the reasons are both substantial and in the interests of justice;
2. The section has, as a primary aim, the limitation of the time occupied in committal proceedings and cross‑examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance;
3. The objective of the proceedings is to facilitate a fair trial in the event that the person charged is committed and later stands trial;
4. Any statement served has to be considered with reference to the issues it addresses and the charge to which it relates;
5. The application to cross‑examination requires identification and consideration of the objective of the cross‑examiner and the framework of the prosecution’s case;
6. In some cases it would be inappropriate to make the defendant wait for a voir dire before the trial Judge to determine if evidence ought to be rejected without any hearing of the relevant matter in cross‑examination. The prosecution may be caught short with no forewarning of the criticisms of the defence and the defence may be uncertain of the case he or she has to meet. Again, see the DPP v Losurdo [1998] 44 NSWLR 618.
7. There being no interlocutory appeal from a direction made at a directions hearing in Queensland, then clearly a Magistrate, who is deciding whether to require the witness to be called to give oral evidence ought to be made available for cross‑examination, should not only make the decision subject to section 110B, but should also take into account that any injustice caused by his or her decision may not be cured until after a person has been committed, tried, convicted, and has appealed against his or her conviction or sentence;
8. That to reopen a magistrate’s direction under section 83A, leave must first be obtained for a special reason. A test which is a more onerous test to surmount than the substantial reason tests required under section 110B.
What may not be “substantial reasons”
As I said in Archer’s case, the following may not be substantial reasons:
1. Obviously, a finding against the ground raised may show the stated reason is not substantial or that it is not necessary in the interests of justice. For example, if a witness is found not to be a significant witness, or that the cross‑examination is not likely to significantly undermine his or her credibility, or whether cross‑examination could wait for trial without prejudice to the defendant;
2. 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, or put more crudely, fishing. See N v Haskett [2006] NSWSC 114 at paragraph [15];
3. To provide the opportunity for a full dress rehearsal for the trial. See again Haskett (above) at [15];
4. If the defendant will suffer no disadvantage other than that the witness will be cross‑examined on one occasion only rather than two;
5. If the witness is no longer going to be relied upon by the prosecution; and
6. Bald assertions that cross‑examination will go to the credit of a police witness or other witness, without more. In respect of that issue see McCurdy v McCosker [2002] NSWSC 197 at paragraph [29][5]. In McCurdy v McCosker the Court also stated at paragraph 31 that, “While the defence has the onus of persuading the Court that the order should be made, the prosecution also has a real interest in making sure that the committal proceedings achieve the purpose of ensuring that only appropriate matters are sent for trial.” And his Honour made those remarks in the context that that being the case, both parties owed a duty to assist the Magistrate in assessing the reasons propounded.
[5] See also BJG v Police [2011] QMC 001 and Blacklidge v Police [2011] QMC 007, per Hine BP, Deputy Chief Magistrate.
Analysis
The evidence which could be given by the civilian witnesses can be broken down as follows:
(i)Statements by 54 civilian witnesses were tendered. Not many of these were witnesses who purported to identify anyone, let alone the defendant. Most of them provided various descriptions of relevant events and identifying particulars of various people they saw in various roles before, during and after the melee.
(ii)Of these 54 civilian witnesses, 32 witnesses were shown photoboards.
(iii)Out of those 32 who were shown photoboards, only nine (9) identified the defendant Joshua Moon.
(iv)Out of these nine witnesses, five (5) were able to identify also one or more other people and their involvement.
(v)The remaining 23 witnesses did not identify the defendant at all.
(vi)Out of those 23 witnesses who could not identify the defendant, only six (6) could identify any one else.
(vii)Therefore, a total of only 15 witnesses were able to identify any one at all and 11 out of the 15 identified one or more people other than the defendant Moon.
The prosecution submit that there are no substantial reasons why in the interests of justice any cross-examination should be required because the grounds relied only on a reading of the witness statements without taking into account the further evidence in the exhibits consisting of audiovisual recordings of the photoboard identification process with each of the witnesses who were shown photoboards.
Mr Lancaster conceded he had looked at only the video recordings of witnesses who had positively identified his client. In his outline and oral submissions Mr Lancaster did not refer me to the content of the audiovisual recordings he did see. Nor did he contradict the prosecutor’s summary of the content of any of the audiovisual recordings.
The prosecutor helpfully took me through the audiovisual evidence available from each and every one of the witnesses who do make identifications. Each witness stated whether they could or could not identify anyone and each one either said they could not further describe the person they mentioned in their statement or what role the person had played in the relevant events.
In Qaumi v Director of Public Prosecutions (NSW) (2008) 186 A Crim R 72; [2008] NSWSC 675, a Local Court made orders limiting cross-examination of witnesses to questions about the reasons for the alteration of an eye witness account. Fullerton J held that leave to appeal should not be granted as the applicant had not successfully established an error of law in the judgment of the magistrate. At [53], [54] Fullerton J noted:
“[53] Self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding. In B v Director of Public Prosecutions (NSW) & Anor[2002] NSWSC 1046; 135 A Crim R 454, Sperling J refused relief sought on the basis of asserted inconsistencies between the complainant’s versions of events. His Honour referred at [23] to oral examination being justified where, because of the inconsistent versions of events, it was not clear what version of events would be advanced as the case for the accused to meet. His Honour considered there was no such doubt in the proceedings under consideration. His Honour dismissed the summons, having found no error of legal principle or reasoning.
[54] In Battur v Director of Public Prosecutions (NSW)[2002] NSWSC 1237; 136 A Crim R 533, Cooper AJ dismissed a summons seeking relief in circumstances where the proposed cross-examination went to the quality of observations of each witness and the opportunity for each witness to observe the events relating to a stabbing. The issue in that case was not the identity of the assailant but what occurred prior to the stabbing. The proposed cross-examination was directed to qualifying or elaborating upon the observations of witnesses with a view to establishing what they did not see as distinct from what they did see. In that case his Honour was not persuaded that the Magistrate had failed to apply the statutory test or that his discretion has miscarried in a relevant respect.”
In Battur v Director of Public Prosecutions (NSW) (2002) 136 A Crim R 533; [2002] NSWSC 1237 (see para [20], [21]) the defendant’s written submission stated that the witnesses were wanted "in an attempt to clarify exactly what the Crown case will be regarding the events immediately prior to the stabbing". The application sought “to cross-examine in relation to the following areas:
(i)Quality of the observations of each witness and the opportunity for each witness to observe what was happening.
(ii)Particulars with regard to their observations of the knife and in particular where and how it was held.
(iii)Particulars as to what each witness says the deceased and the other two men in the immediately vicinity were doing.
(iv)Particulars as to any physical contact that each witness may have seen.
(v)Particulars regarding the inconsistencies discussed above."
In Battur’s case (above) it was clear from the statements of the four witnesses whose attendance was sought, that they each had only a brief glimpse of what occurred immediately before the stabbing. In that case the defendant had made admissions to the stabbing but had raised matters which could lead to claim of provocation, self defence or intoxication. At [28], [29] Cooper AJ held:
[28] I think when one looks at the terms of the judgment as a whole it is quite clear that his Worship was considering the appropriate test as described in the section of the Justices Act and that he was in an extempore judgment using a shorthand phrase for the total clause set out in the Act. On behalf of the accused, it is submitted that the magistrate erred because his decision deprived the accused of the opportunity of investigating the knowledge of the witnesses as to what occurred in William Street immediately before the stabbing.
[29] When one looks at what the magistrate said, it is clear that he considered this very question - that is whether there were substantial reasons why in the interests of justice the witnesses should attend to give oral evidence and having considered that very question he came to a conclusion on the evidence well within his jurisdiction. It was submitted on behalf of the accused/plaintiff in this case that it is common experience that cross-examination can lead a witness to remember things or to qualify or add to or vary evidence which is contained in the statement. That may well be so but as was pointed out by Studdert J in Hanna v Kearney, …:"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 defendants would not constitute substantial reasons. It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks."
At the hearing of the application Mr Lancaster conceded that he had only seen the video recording of the photoboard identifications for those witnesses who had identified his client. I did not press him further so I must assume he has seen the videos of those nine (9) witnesses who identified the defendant Moon. He sought the cross-examination of 26 witnesses. Therefore, I can also assume that Mr Lancaster has not seen the video recording of the attempted photoboard identifications for the remaining 17 witnesses, whom he seeks to cross-examine, and who had not identified his client.
Magistrates can expect more assistance from each of the parties to these types of applications. In McKirdy v McCosker (2002) 127 A Crim R 217; [2002] NSWSC 197 at [29] to [32] Howie J stated:
[29] It seems clear to me that the Magistrate did not receive the assistance that he might have expected from those appearing before him. … the defence has a duty to make it clear to the magistrate the purpose for which a witness is required to give evidence. Simply to state, as the defence solicitor did in this case, that the injuries were relevant "because it all permeates, it all goes back to the initial alleged arrest", or to baldly assert that they went to the credit of the police officer with nothing more, did not sufficiently define the purpose of calling witnesses that were concerned with the infliction and nature of the injuries suffered by the plaintiff in order to permit the Magistrate to rule upon whether that matter was of substance. … I have had the very considerable advantage, which was denied the Magistrate, of lengthy, detailed, articulate and careful submissions by counsel appearing for the plaintiff.
[30] Written submissions placed before me by the parties total over thirty-one pages of close typescript, twenty-six pages of those submissions having been prepared on behalf of the plaintiff. Twenty-four of those pages are directed to the law to be applied by the Magistrate and the basis upon which it is now suggested that the Magistrate should have found that there were substantial reasons in the interests of justice for the witnesses to be called. In contrast, the Magistrate received one sheet of paper of cryptic notes evidencing, what was said to be, an agreement between the parties as to the relevant issues. This agreement was later reneged by the prosecution. The Magistrate also had the benefit of oral submissions taking up a little over six pages of transcript. However, most of the argument before his Worship was concerned with efforts by the Magistrate to have the defence solicitor explain with clarity his submission that the injuries suffered by the plaintiff were relevant to a determination of the legality of the arrest.
[31] Yet it was the Local Court, and not this Court, which had the task of determining whether an order should be made directing the attendance of any or all of the witnesses. This was an important part of the committal proceedings as the decision to refuse the application might have a significant impact upon the ability of the plaintiff to defend himself. The defence has the onus of persuading the court that the order should be made but the prosecution has a real interest in making sure that the committal proceedings achieve the purpose of ensuring that only appropriate matters are sent for trial. In my view both parties failed to assist the Magistrate to the extent that he, and the proper administration of justice, was entitled to expect.
[32] … it is not acceptable that there be such a discrepancy between the way the application was conducted before the Magistrate and the manner in which it was argued before me. This Court's jurisdiction to review the exercise of a magistrate's jurisdiction must take into account the material upon which he or she was asked to exercise that jurisdiction. Further, mandamus is a discretionary relief, and a significant matter in that regard is a consideration of how the matter about which complaint is made to this Court was conducted before the Magistrate.
Equally then, in Queensland, if the failure or refusal of a magistrate to grant an application to call a witness is raised as a ground of appeal against conviction or sentence, the defence might not succeed on that ground of appeal if they have failed to give the Magistrate the appropriate materials or submissions. Also, the ground might succeed where the prosecution has failed in its duty to assist the court or to make proper disclosure to the defence.
It is for the applicant to clearly define the purposes of the cross-examination he is seeking. Defining those purposes should rely on an actual consideration of all the evidence relevant to the issue on which the applicant seeks to cross-examine and not on selective or partial evidence, nor on conjecture.
Conclusions
Here I am satisfied that it is clear what case will be advanced by the Crown for the accused to meet, in terms of what version of events are stated by each witness and what identification evidence there is against him.
As in Battur’s case (above), the proposed cross-examination goes to the quality of observations of each witness and the opportunity for each witness to observe the events relating to a stabbing. The proposed cross-examination would be directed to qualifying or elaborating upon the observations of eye witnesses. The applicant has not clearly outlined the objective of the cross-examiner within the framework of the prosecution case.
The application has all the appearance of one made without a definite aim but in the hope of eliciting some evidence that might prove useful to the defendant.
The applicant has not even outlined the questions or types of questions he seeks to ask of the witnesses about any inconsistencies between them concerning either identifications or descriptions. It is for the Crown and a jury to resolve any such inconsistencies.
The reasons advanced do not constitute substantial reasons.
Even if they did constitute substantial reasons I would not hold them to be reasons of such substance in the circumstances of this case as to require the cross-examination in the interests of justice.
I note in passing that a common complaint made about identification evidence is that it may have be tainted by the number of times a witness sees the defendant in or around the courts. I invited submissions about whether I should be concerned about this. However, both parties preferred to say nothing about the point. I say no more about that because I must assume the motives of the applicant are pure. However, by not requiring the witnesses for cross-examination a by-product will be that it is now more certain that the risk of contamination of the identification evidence will be lessened.
I am satisfied that, consistently with the policy of the amendments, i.e. the Moynihan reforms, there is no necessity for the eye witnesses to give evidence twice by giving evidence at the committal and again at the trial. Furthermore, it is also consistent with the policy of the Moynihan reforms that a victim of violent crime should not have to suffer the trauma of giving evidence twice unless that is justified[6].
[6] See also Kant v Director of Public Prosecutions(1994) 34 NSWLR 216 at 225D-E, per Gleeson CJ.
The Crown case is so explicit here that there is no real possibility that, if the alleged victims and other witnesses are subjected to cross-examination, the defendant will not be committed for trial. Nor does it appear likely that a Basha inquiry on the specific points raised in this application would be necessary in the District Court.
The applicant has not satisfied me there are reasons why in the interest of justice the questions must be asked now at committal and why they can not wait until the trial.
The application must therefore be refused.
ORDER
The application is refused.
“(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.
(2) The Justice or Justices may give the direction only if:
(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or
(b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
(3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.
(4) A defendant may apply for a direction under subs(1) only if the defendant has served on the informant, within such period as …
(7) If the Justice refuses or Justices refuse to give a direction under subs(1), the Justice or Justices must give reasons for doing so.
… .”
0
7
1