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