PJK v Police

[2011] QMC 43

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

PJK v Police [2011] QMC 043

PARTIES:

PJK
 (applicant)
v
POLICE

(respondent)

FILE NO/S:

MAG221707/10(9)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for to cross-examine witness in a committal proceeding

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

25 May 2011

DELIVERED AT:

Cairns

HEARING DATE:

8 April 2011

MAGISTRATE:

Pearson S

ORDER:

1. The complainant shall be called as a witness at the committal hearing to be available for cross-examination regarding:

·           -Her use of the drug Tramadol;

·           -The asserted affects of Tramadol during the events of 1 November 2010;

·           -Details of her conversations with WJ and WS.

2. The witnesses WJ and WS shall be made available for cross-examination at the committal hearing regarding any additional evidence given by the complainant relating to “recent complaint” not canvassed in their statements.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDING – application to cross-examine witness – whether there are substantial reasons

Justices Act 1886 (Qld), s 83A(5AA), s 110B(9)

Hanna v Kearney and Anor (2998) 44 NSW LR 618

Director of Public Prosecutions v Losurdo and Anor unreported 23 September 1998

Quami v Director of Public Prosecutions and Anor [2008] NSWSC 675

COUNSEL:

T Eckersley for applicant

A Gregg (sergeant) for respondent

SOLICITORS:

O’Reilly Stevens Bovey Lawyers for applicant

Respondent on own behalf

1. The applicant is charged with the offence that on 1 November 2010 he committed the offence of rape.

1. The applicant has applied for a direction under s 83A(5AA) of the Justices Act 1886 requiring the prosecution to call witnesses at a committal proceeding relating to this charge so they may give oral evidence or be made available for cross-examination on their written statements.

1. Section 110B(9) of the act provides that I must not give such a direction unless satisfied there are substantial reasons why, in the interests of justice, the maker of a statement should attend to give oral evidence or be made available for cross-examination on the statement. The applicant bears the onus of satisfying the court as to whether there are such substantial reasons.

1. These provisions of the act are relatively new and were imported into the act in 2010. The changes were designed to limit witnesses having to give evidence at committal hearings unless required in the interests of justice for reasons that are reasons of substance: Hanna v Kearney and Anor (2998) 44 NSW LR 618.

1. There is no exhaustive list of what amount to substantial reasons in the interests of justice however it may include instances where cross-examination is likely to:

(i)          Result in the discharge of the defendant or grounds for a no true bill application;

(ii)        Substantially undermine the credit of an important witness;

(iii)        Enable a proper understanding of the prosecution case and to avoid the defendant being taken by surprise at trial;

(iv)       Enable a proper understanding of the basis of an opinion held by a witness

(v)        Narrow the matters in dispute especially where the prospect exists of a lengthy trial;

(vi)       Elicit evidence which may give rise to a discretion or determination to reject evidence at trial.

1. These examples are taken from Hanna v Kearney and Anor (as above); Director of Public Prosecutions v Losurdo and Anor unreported 23 September 1998; Quami v Director of Public Prosecutions and Anor [2008] NSWSC 675.

1. Each case will depend on its own facts and the particular questions raised in it.

1. The facts in the present case are as follows:

1. The applicant and the complainant had met in around September 2010 and had been dating for a period time leading up to the events. By the end of October, the complainant had ended the relationship. However, over the weekend of 29/30 October, the applicant helped the complainant move into a new residence and the romance seemed to rekindle with the two people being intimate on the Saturday night.

1. On Monday 1 November, the two had contact during the day which culminated in the applicant being at the complainant’s home during the evening. She was not feeling well and took some medications for a migraine and went to bed. While in bed, the applicant came into her bedroom to speak with her. He offered to rub her neck and back. She said no to this and that she did not feel well.

1. The complainant estimates that 20-30 minutes after this exchange, the applicant was again in her room, partially removed the doona which was covering the complainant. She was lying on her stomach with a pillow covering her head when the applicant started to rub her neck and back. He then tried to rub her on the vagina but she pushed her legs together and said “No”.

1. The next thing the complainant recalls is the applicant rubbing his penis against her vagina and then ultimately having sexual intercourse with her while she remained on her stomach. She explains in her statement that, due to the effects of the medications she had taken, that she was not able to move or say anything to tell the applicant to stop but that he did not want these things to happen.

1. The applicant tried to manoeuvre the complainant’s leg at some stage to change her position but he desisted after this was not possible. After another short period of time, the applicant asked “Are you awake?” and, after receiving no response, he stopped what he was doing. He later shared the bed with the complainant for the night, leaving early the next morning.

1. The next night the applicant sent a text to the complainant in these terms:

“I am sorry I am so ashamed of myself I don’t deserve you or to be around you. I can’t even look at myself in the mirror. I am so sorry for everything I am a fuck up u deserve a better man than me. I won’t bother u ever again I promise. Take care.” This was in response to the complainant’s text asking if he was okay with what had happened the night before.

1. This text was followed by further texts with a similar theme. In some he said he would hand himself into the police and that he deserved to go to jail.

1. On Wednesday 3 November, the complainant has a conversation with her step-mother and “told her what had happened…without going into too much detail”. That same day, the complainant also told a friend “what had happened”.

1. The step-mother and friend have each supplied details of what they were told by the complainant.

1. On 4 November, the complainant made a complaint to the police about the events. She then made a series of 4 phone calls to the applicant, which were recorded (known as pretext calls). During these conversations the applicant admits having intercourse with the complainant and expresses significant regret for his actions but that he thought she was awake at the time. There were the 4 calls as the applicant did not always want to talk about the events and asked the complainant to call him back at a later time which she did.

1. The applicant seeks a ruling that three witnesses be made available for cross-examination at committal proceedings, they being:

(i)          The complainant

(ii)        Her step mother (WJ) and

(iii)        Her friend (WS).

1. With regard to the complainant the reasons argued are:

1.          Evidence as to the history of their relationship should be ventilated (including when they were together and when they separated);

2.          The context and details of consensual sexual activity between the complainant and the applicant 2 nights prior to the alleged rape should be explored with the view to having relevance to a s 24 defence to the alleged rape;

3.          Further details regarding the use of the drug Tramadol by the complainant needs to be explored: Who prescribed the drug, in what strength, what were the instructions for the taking of the drug, what were the effects upon the complainant when she took the drug?

4.          The assertion from the complainant that, due to the ingestion of Tramadol, she was unable to physically move, open her eyes, speak but was sufficiently alert to be aware of the applicant’s action needs to be explored as it relates to a s 24 defence and the overall reliability of her account;

5.          The lack of complaint to the applicant the next day and her failure to complain to the police until 4 November should be explored;

6.          Details of her conversation with WJ and WS needs to be expanded upon as the complainant provides no detail or context for the conversations;

7.          The reason for the numerous pretext phone calls needs to be explored.

1. The Defence asserts these issues are of great significance in this case where the account of the complainant is uncorroborated.

1. With regard to WJ the reasons argued are:

1.          Further details supplied by the complainant will need to be checked against the evidence of this witness as it will be relevant to the credibility of the complainant.

1. With regard to WS the reasons argued are:

1.          Further details supplied by the complainant will need to be checked against the evidence of this witness as it will be relevant to the credibility of the complainant.

1. The prosecution objects to the ruling being sought and rely on the following points:

1.          Adequate detail of the relationship between the parties is contained within the complainant’s statement;

2.          There is no need for the further exploration of the instance of intimate relations between the parties which took place two days prior as they are distinctly difference scenarios;

3.          The questions regarding her use of the drug “Tramadol”, and her lack of complaint immediately after the events, are issues which can be canvassed at trial or by way of an addendum statement;

4.          The reasons for the four pretext calls are clear from the transcripts of the calls where it is revealed that the complainant called the applicant on subsequent occasions at his request as he was not able to talk to her on the various occasions upon which calls were initiated.

1. The prosecution concedes there is a lack of details regarding any recent complaint made by the complainant to her step-mother and her friend.

1. Overall, it was argued that there are no substantial reasons why, in the interests of justice, the witnesses should be called to give evidence on these points.

1. It was further argued that any deficiencies in the statements from the witnesses could be cured by police taking addendum statements addressing the issues. This had not happened at the time of hearing this application. I am told that this was because the police were awaiting the outcome of the application.

1. An addendum statement may well have provided the information sought by the applicant but in order for this submission to be given any weight, the statement should have been taken and provided to the applicant prior to the hearing of the application. It is impossible to give this argument weight when it is not known what the statement might say and, therefore, whether it would cure the ill complained of by the applicant. Such an argument should not be attempted unless the addendum can be supplied to the court for its consideration at the hearing of the application.

1. It is asserted by the prosecution that the complainant’s account is corroborated by the comments made by the applicant by text message and also in the pretext telephone calls which would amount to admissions against interest. In my view, while there may be some ambiguity in the latter comments, overall the statements by the applicant are certainly capable of being interpreted in this way and could be used by a jury as corroborative evidence. Therefore, on this aspect of the dispute I find in favour of the prosecution and will make further determinations on this basis.

1. In the end, I am satisfied that the applicant has shown substantial reasons why, in the interests of justice the complainant should be called as a witness at the committal hearing to be available for cross-examination regarding:

1.          The use of the drug Tramadol: including details of who prescribed the drug, in what strength, what were the instructions for the taking of the drug, what were the effects upon the complainant when she took the drug?

2.          The asserted affects of Tramadol during the events of 1 November: including the assertion that, due to the ingestion of Tramadol, she was unable to physically move, open her eyes, speak but was sufficiently alert to be aware of the applicant’s actions as it relates to a s 24 defence and the overall reliability of her account;

3.          Details of her conversations with WJ and WS.

1. I further order that the witnesses WJ and WS be made available for cross-examination at the committal hearing. I will allow questioning of each witness should the evidence of the complainant regarding her recent complaint to them contain details previously not canvassed by the witnesses in their statements but not otherwise.

1. In my view the issue of the ingestion of the drug Tramadol has not been sufficiently covered in the police statements and the applicant would be denied a fair trial if the first opportunity to address this issue was at trial. The questions are likely to give rise to evidence relevant to the s 24 defence which is clearly raised in this case and also affect the reliability of the complainant’s account.

1. The deficiencies regarding evidence of recent complaint are obvious and the evidence is likely to impact on the admissibility of the evidence of WJ and WS.

1. I decline to make the further orders sought by the applicant.