Mosquera v Coates and Fagan

SUPREME COURT OF QUEENSLAND

CITATION:

Demosthenes Doyle Mosquera v Coates and Fagan [2017] QSC 134

PARTIES:

DEMOSTHENES DOYLE MOSQUERA
(applicant)
v
MAGISTRATE COATES
(first respondent)
PLAIN CLOTHES SNR CONST JENNIFER FAGAN

(second respondent)

FILE NO/S:

SC No 198 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2017

JUDGE:

Holmes CJ

ORDER:

Application for review dismissed.

CATCHWORDS:

JUDICIAL REVIEW – REVIEWABLE DECISIONS – where the applicant faced committal proceedings – where the magistrate refused to make a direction that the prosecutor call certain witnesses to enable their cross-examination– where the magistrate proceeded by way of hand-up committal and committed the applicant for trial – where the applicant seeks review of the decision to refuse the direction and the decision to proceed to committal – where at the directions hearing the magistrate mistakenly considered ‘general issues’ set out in the applicant’s draft order as the specific questions to be asked in cross-examination  - whether the magistrate proceeded on the basis that the applicant had to identify specific questions for cross-examination – whether there was a denial of procedural fairness because the magistrate had not considered the parties’ arguments - whether the two decisions are reviewable decisions – whether any remedy is available –whether as a matter of discretion relief should be granted.

COUNSEL:

E Mac Giolla Ri for the applicant
P McCafferty for the respondent

SOLICITORS:

Ashworth Lawyers for the applicant
Queensland Police Service Legal Unit for the respondent

1. HOLMES CJ: The applicant (curiously titled “first plaintiff”) seeks judicial review of what are described as two decisions by a magistrate: the first, to dismiss his application for a direction for the attendance of witnesses at a committal proceeding (to enable their cross-examination); and the second, to proceed with the case by way of full hand-up committal hearing and commit him for trial.  The first respondent is the magistrate, who in accordance with the Hardiman[1] principle has taken no active role in this hearing but abides the order of the Court.  The second respondent is the police officer who charged the applicant with eight charges of indecent treatment and rape, offences allegedly committed against four different complainants. 

   [1]     R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

   Relevant Justices Act provisions concerning committal proceedings

2. Section 110A of the Justices Act 1886 provides for the use of tendered statements in committal proceedings. Section 110A(3)(a) requires a magistrate to admit the written statement of a witness tendered by the prosecution as evidence, in which case it is admissible as it would have been had oral evidence been given of its contents.[2] The magistrate must not require the witness whose statement is thus tendered to be called unless a direction has been made under s 83A(5AA) of the Act,[3] which permits a direction to be given requiring the prosecution to call the maker of a statement.  Section 110B(1) of the Act prohibits the…