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…