PBK v Police

[2012] QMC 10

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

PBK v Police [2012] QMC 10

PARTIES:

PBK

(applicant)

v

POLICE

(respondent)

FILE NO/S:

MAG-00160263/11(3)

DIVISION:

Magistrates Court

PROCEEDING:

Application to cross-examine witnesses in Committal Proceedings

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

23 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2012

MAGISTRATE:

Callaghan CJ

ORDER:

The application is dismissed

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE –COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – observations of complainant after alleged rape – general relationship evidence – details of preliminary complaints – delay in making complaint.

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

COUNSEL:

R O’Gorman for the applicant

SG Baso for the respondent

SOLICITORS:

Aitken Wilson for the applicant

Director of Public Prosecutions for the respondent

1. PBK, the defendant, is charged with one count of rape which allegedly occurred on 27 August 2009 at Inskip Point Camping Ground. The complainant is the defendant’s former de facto partner. They were in this relationship as at the date of the alleged rape. Their relationship terminated on or about 4 October 2009 and at least at by 8 October 2009 when she first made a complaint to the police that he had committed an act of domestic violence against her and an application for a protection order under the Domestic and Family Violence Protection Act was brought.

1. This is an application by the defendant pursuant to s 83A(5AA) of the Justices Act 1886 (“the Act”) for a direction that Jamie Wilson, Brendan Andrew, Tamara Hazelden and Jeffery Lilley be cross-examined.

1. Section 110B(1) of the 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

1. 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.[1]

   [1]See Police v ED [2011] QMC 3 at paragraph 5 and the cases referred to therein.

Substantial reasons why in the interest of justice

1. There have now been many judgments of this court discussing this phrase.[2] All of these judgments follow the judgments and reasoning in the decision of Studdert J in Hanna v Kearney and Another[3] and the decision of the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and Another[4] which cited the judgment of Studdert J in Hanna v Kearney with approval. In summary those judgments gave the following guidance:-

   [2]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.

   [3][1998] NSWSC 1026 (28 May 1998); BC9803179

   [4](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.

This application

1. Initially the defendant also sought to cross-examine the investigating detective and the complainant.

1. For good reason the Office of the Director of Public Prosecutions has given its consent to the defendant cross-examining the complainant in limited circumstances.[5]

   [5]Namely the delay in making the rape complaint and her memory of the timing of the alleged assaults occasioning bodily harm.

1. In the result the defendant does not prosecute his application to further cross-examine the complainant.

1. Also the defendant applied to cross-examine the investigating officer Detective Wheeler. The Director of Public Prosecutions has not consented to Detective Wheeler being cross-examined and the defendant has determined to not further prosecute his application to cross-examine Detective Wheeler.

1. That leaves this application to cross-examine the four other witnesses mentioned earlier in this judgment.

Jamie Wilson and Brendan Andrew

1. These two witnesses can be dealt with jointly in this judgment.

1. Ms Wilson says in paragraph 7 of her statement that she remembers that around October or November 2010 the complainant told her that she had been raped by the defendant (a person unknown to Ms Wilson). She goes on to say that the complainant told her she had been on a camping trip to Fraser Island with him and they had gone there with a few friends and that the complainant told her that the defendant had been drinking, was really drunk and that he had forced himself on to her and that she had kept saying no to him. Ms Wilson says in paragraph 10 that she didn’t ask the complainant any further details as she could see that the complainant was already upset. She says she was not crying when she told her these things but she could see that she was upset.

1. Brendan Andrew says that he was on the camping trip. He remembers that the complainant and defendant fought all weekend but they were a couple that always fought. He says in paragraph 10 of his statement dated 14 November 2011 that he was never aware that the complainant had been raped on that weekend until about mid 2010. He says that he remembers that the complainant told him when they were getting ready to go out at the complainant’s house in Burpengary and the complainant was quite upset when she told him this. He said the complainant told him that the defendant had raped her on the Saturday night and that the defendant had gotten physical with her and wouldn’t let her go. He said she told him no details as to how it occurred.

1. The defendant seeks to cross-examine both of these witnesses concerning the timing of the disclosures and what in fact was said in the disclosures.

1. Wilson says the disclosure was made to her in around October or November or November 2010. Andrew says the disclosure was made to him in about the middle of 2010. Remembering that the alleged rape occurred on 27 August 2009 the defendant says that the timing of the disclosure is important because the complainant made complaints on 30 March 2010 about the defendant having previously assaulted her on four occasions. It is also the case that the complainant was unhappy with the progress of the police investigation from this 30 March 2010 complaint that she went to the police on 17 October 2010 to make her formal complainant of rape. The defence will argue that she was making up the rape when she made the complaint to the police and that she was also making it up when she made these preliminary complaints to these two witnesses. The closer these complaints were made in time to the complaint to the police the stronger the defence argument is that she is making up. The witness Wilson says in her statement of 16 March 2011 that the complaint was made to her in October or November 2010 which is quite close in time to the making of the rape complaint to the police. The witness Andrew only gave his statement on 14 November 2011 so it is quite reasonable for him to be more vague about when this preliminary complaint was made to him. He says it was in about the middle of 2010 but he is making his statement at least eight months subsequent to that of Wilson.

1. The defence will not be taken by surprise if at trial evidence is given by Mr Andrew that the complaint was made closer to December of 2010 rather than in the middle of 2010. Similarly they may also get the witness Wilson to concede that it was made more towards December 2010 rather than in October or November of 2010. These are quite small points and they can only get better for the defendant at trial. Both witnesses have already stated when they thought it occurred. The defendant does not need further cross-examination on these points for a proper understanding of the case against nor will it narrow issues nor would it be likely to result in a discharge of the defendant on these things alone.

1. The defence also seeks to cross-examine these two witnesses on what was said to them by the complainant. I have set out earlier in this judgment to what their recollections were at the time of making their statements. It is argued by the defence that there are some inconsistencies into what they both said. The witness Wilson says that the complainant told her that the defendant had forced himself onto her. The witness Andrew says that the defendant had raped her on the Saturday night and that he had gotten physical with her and would not let her go. She did not tell him any details as to how it occurred and the witness Wilson did not ask for any further details. The statements are not necessarily inconsistent. Even though the witness Wilson doesn’t mention the word rape it may well be that the words “forced himself onto her” meant just that. Given that she did not ask the complainant for any further details it is unlikely that the defendant is going to get any further details out of this witness as to what the complainant said to her.

1. I am therefore not satisfied that there are substantial reasons in the interest of justice why either the witness Jamie Wilson nor the witness Brendan Andrew ought to be cross-examined on either the timing of the complaints of the disclosures made to them or the further details of the disclosures themselves.

Tamara Hazelden and Jeffery Lilley

1. Both of these witnesses can be conveniently dealt with together in this judgment. Both of them were at Inskip Point on the weekend of the alleged rape and the defence seeks to cross-examine them on them observations of the complainant. Both were also close friends of the complainant and the defence seeks to cross-examine them on their observations of the complainant in the following months. Two assaults on her by the defendant are alleged by the complainant to have occurred prior to the rape they being on 31 May 2008 and 16 May 2009.

1. She says two further assaults allegedly occurred the same day and place on 4 October 2009 - subsequent to the rape. It is shortly after this that the relationship is finalised.

1. Tamara Hazelden says that she does not remember the complainant and defendant having an argument that weekend and that they appeared to get on well together. She remembers most of them including the complainant and defendant consuming a bit of alcohol. She says she has witnessed the defendant and complainant commit domestic violence against each other to the point where in April 2009 when they were both very intoxicated they started throwing punches at each other.

1. Jeffery Lilley also cannot remember the defendant and complainant having an argument that weekend. It is submitted by the defendant that the witnesses should be called for cross-examination at the committal to allow the defence to explore the nature of the relationship between the complainant and the defendant. The relationship is quite well set out in the statements of both of these witnesses and others in this whole matter.

1. The complainant says that on the morning after the alleged rape she got up early and started packing up and after she had packed up that she left in her parent’s land cruiser. She says the defendant and two other people (whom she does not nominate) came back with her. It seems therefore that there was little opportunity for Ms Hazelden or Mr Lilley to observe them the day following the alleged rape.

1. Brendan Andrew says that they were a couple that always fought.

1. The defence wishes to explore the nature of the relationship between the complainant and the defendant. The nature of the relationship between the complainant and the defendant is well set out in all of the statements which are before the court. The defendant would be hoping that both of these witnesses would say they keenly observed the defendant and complainant relating to each other after the alleged rape and that the complainant was very friendly towards the defendant. There is nothing in the statement which indicates that that will be the case. The fact remains that the complainant and the defendant did not formally separate until October of 2009. To allow this cross-examination would be simply to allow it in the hope of eliciting some evidence which might prove to be useful to the defence. At trial the defendant would be able adduce evidence himself as to the nature of their relationship subsequent to the alleged rape and as both of these witnesses were friends of both the complainant and the defendant I can see no reason why the defence representatives cannot approach them and ask them what they would say if they were asked these things at trial that is to take a proof of evidence themselves from them. It is not the purpose of committal proceedings to build a case for the defendant.

1. I am not satisfied that there are substantial reasons why in the interests of justice either of these two witness should be called to be cross-examined in this particular case.

1. The Application is dismissed.

C Callaghan

Magistrate