Police v Atkinson

[2013] QMC 18

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Atkinson [2013] QMC 18

PARTIES:

POLICE

(prosecution)

v

LEONARD STANLEY THOMAS ATKINSON

(defendant)

FILE NO/S:

SOUT-MAG-941/12

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross-examine a witness in a committal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

18 June 2013

DELIVERED AT:

Southport

HEARING DATE:

12 April 2013

MAGISTRATE:

Magee KT

ORDER:

application granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - interests of justice

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

COUNSEL:

Roberts (police officer) for prosecution

Carlin (solicitor) for defendant

SOLICITORS:

Prosecution on own behalf

Legal Aid Queensland for defendant

1. The defendant is charged that on 11 January 2011 at Surfers Paradise he robbed Mitchell Westhead and used other personal violence to Mitchell Westhead. This is an application under section 83A(5AA) of the Justices Act 1886 for a direction requiring the prosecution to call a number of witnesses to be made available for cross examination on their witness statements.

1. The prosecution has consented to cross examination of three witnesses in relation to particular matters. The applicant in addition seeks further cross examination of the witness Thompson than agreed to by the prosecution.

1. A direction requiring the prosecution to call witnesses to be made available for cross examination on the witness statements must not be given unless I am satisfied that there are substantial reasons why, in the interests of justice, the witness should be made available for cross examination on the witness’s written statement.[1]

   [1]Section 110B(1) Justices Act 1886

1. It is now reasonably well settled that the provisions of section 110B(1) of the Justices Act 1886 were modelled on section 91 of the Criminal Procedure Act 1988 (NSW) and that the NSW authorities in relation to “substantial reasons” afford considerable assistance to the determination under the Queensland Legislation.[2]

   [2]See for example Police v BCR [2011] QMC 29; Police v CM [2011] QMC 14; PJK v Police [2011] QMC 43.

1. A number of relevant principles may be distilled from the New South Wales authorities.

(i)          The purpose of the legislation is to avoid delay by unnecessary or prolix cross examination at committal.[3]

[3]Sim v Magistrate Corbett [2006] NSWSC 665

(ii)        Committal proceedings are not to provide the opportunity for a full dress rehearsal for trial. Cross examination is to be eliminated unless it is required in the interest of justice for reasons that are reasons of substance.[4]

[4]Hanna v Kearney [1998] NSWSC 227; DPP v Losurdo [1998] 44 NSWLR 618

(iii)        The onus of proof is on the defence to satisfy the court that an order should be made.[5]

[5]Sim v Magistrate Corbett

(iv)       Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.[6]

[6]Sim v Magistrate Corbett

(v)        The application to cross examination requires identification and consideration of the objective of the cross examiner, and the framework of the prosecution case. To require a witness for cross examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute “substantial reasons”.[7]

[7]Hanna v Kearney (suprea) supra; DPP v Losurdo (supra)

(vi)       The fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands 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 held by a witness.[8]

[8]Hanna v Kearney (supra); DPP v Losurdo (supra)

(vii)       The cross examination may lead to the narrowing of matters in dispute. This may constitute a substantial reason.[9]

[9]Goldsmith v Newman (1992) 59 SASR 404; Hanna v Kearney (supra); DPP v Losurdo (supra)

(viii)      Where cross examination is likely to result in the discharge of the defendant or to establish grounds for no bill application this may constitute substantial reasons.[10].

[10]Hanna v Kearney (supra); DPP v Losurdo (supra)

(ix)       Where cross examination is likely to substantially undermine the credit of an important witness, this could constitute a substantial reason.[11]

[11]Hanna v Kearney (supra); DPP v Losurdo (supra)

(x)        Avoidance of the defendant being taken by surprise at trial may constitute a substantial reason.[12]  

[12]Poliakov v Magistrate Andrew George [2009] NSAWSC 1133

(xi)       The avoidance of a Basher Inquiry will be a substantial reason.[13]

[13]Abdel-Hady v Magistrate Freund & anor [2007] 177 A Crim R 517

(xii)       Substantial reason might exist where cross examination might give rise to a discretional determination to reject evidence at trial.[14]

(xiii)      Not all contradictions or inconsistencies warrant intervention at committal.[15] However inconsistencies creating ambiguity will justify cross examination to enable the defendant to know the case to be met at trial.[16]

(xiv)      Where a complainant has given differing versions of events this may be a special reason to justify cross examination.

[14]Sim v Magistrate Corbett (supra)

[15]Anderson v DPP BC 2009 09917

[16]B v Gould (1993) 67 A Crim R 297

1. In his statement the complainant Mitchell Patrick Westhead states that at approximately 3:00am on 11 January 2012 he was walking from a night club in Surfers Paradise to a back packers resort at Peninsular Drive, Surfers Paradise. Whilst seated waiting for a friend he was approached by and had a conversation with a male. Westhead then realised that there was another male standing to his left. The second male then approached Westhead and made an unsuccessful attempt to punch him toward the head. Westhead then got to his feet and attempted to run away from his assailant. The assailant caught up to him and pushed him to the ground. “Then he threw a few more punches at me. Some of these connected with my jaw. … While we were scuffling he was demanding my wallet and my phone. Then he took my phone. Then the two of them sprinted off down Peninsular Drive…” He said that the person that assaulted him was dark skinned, “he had a slang way of talking”. He said that he had a Mohawk style hair cut, he had a dark complexion, he had a slang accent. The other male was also of a dark complexion.

1. The evidence identifying the defendant as the assailant is the evidence of Ben Aaron Thompson in whose room the mobile taken from the complainant was located. Mr Thompson described the defendant as being aboriginal with dark skin and dark brown curly hair. The witness, Luke Peter Mansini, in describing two people earlier in the evening, apparently the defendant and Thompson described one of the men as white and the other as aboriginal and states that the white guy’s hair was cut in a sort of Mohawk style and his hair was brown.

1. In his statement Thompson states that having been with the defendant in Surfers Paradise on the evening on 10 January 2012, he and the defendant were walking toward home on Peninsular Drive. He went off to urinate when he returned he observed the defendant chasing after a male who tripped and fell and that he saw the defendant then throwing punches at the person who fell. He (Thompson) ran after the defendant and they subsequently walked to Thompson’s unit. He stated that as they walked into his unit the defendant put a phone on the coffee table, it was dark in colour.

1. The witness Thompson participated in a record of interview. That record of interview is in evidence as exhibit 2. In that interview Thompson contradicts himself, particularly in relation to the existence of the mobile telephone. Statements made in that record of interview also conflict with the written statement of the witness. It is clear from the contents of the record of interview, that prior to the recorded interview there was an unrecorded conversation between Thompson and Detective Senior Constable Lynton Raymond Bradbury.

1. The prosecution has consented to the following cross examination of witnesses:-

Ben Aaron Thompson

·     To establish Thompson’s recollection of the circumstances under which the mobile telephone, being the subject property of the charge was found in his bedroom.

·     To establish whether Detective Senior Constable Bradbury and/or Constable Manning made any threat, promise or inducement to Thompson, to induce him to provide a formal statement.

·     The full content of any unrecorded conversations between Thompson and Constable Manning and/or Detective Senior Constable Bradbury on 12 January 2012.

Constable Travers Manning

·     To establish whether Constable Manning and/or Detective Senior Constable Bradbury made any threat, promise or inducement to Thompson, to induce him to provide a formal statement.

·     The full content of any unrecorded conversations between Thompson and Constable Manning on 12 January 2012.

Detective Senior Constable Lynton Bradbury

·     To establish whether Detective Senior Constable Bradbury and/or Constable Manning made any threat, promise or inducement to Thompson, to induce him to provide a formal statement.

·     The full content of any unrecorded conversations between Thompson and Constable Manning on 12 January 2012.

1. The defendant also seeks to cross examine Thompson in relation to his credibility / veracity. The difficulty with the application as framed is that it is in effect an application to cross examine at large. It is submitted that Thompson is a significant witness in the prosecution case. It is his written statement that implicates the defendant. Statements made by him in the record of interview raise concerns about his reliability.

1. It is the submission of the defendant’s legal representative that they wish to cross examine on the basis that it appears that Thompson was interviewed as a suspect, that based on admissions he made he could have been charged as a party and it is the contention of the defendant that they wish to explore in cross examination their concern that the witness Thompson would say anything to avoid him being charged.

1. Certainly from the evidence it appears that the only witness to positively identify the defendant as the assailant is Thompson. The telephone, the subject of the robbery, was found in a drawer in Thompson’s bedroom. It does appear from the statement of the complainant that if Thompson was the first person referred to by the complainant, that he may have been a party to the offence. These issues do raise serious concerns as to the motivation of the witness Thompson in identifying the defendant as the assailant and cross examination as to the defendant’s motivation in identifying the defendant as the assailant may substantially undermine Thompson’s credit. Further, the inconsistencies in and between Thompson’s Record of Interview and written statement raise ambiguities that warrant cross examination prior to the hearing.

1. In the circumstances I am satisfied that there are substantial reasons in the interests of justice that warrant cross examination of Thompson as to his motivation for identifying the defendant as the assailant and as to the inconsistencies in and between his record of Interview and his written statement.

1. Taking into account the cross examination agreed to by the prosecution, I do not consider that the further cross examination should be any broader than I have indicated.

1. I make directions pursuant to the provisions of section 83A(5AA) of the Justices Act 1886 requiring the prosecution to call the following witnesses to be made available for cross examination on their written statements on the issues specified:

Ben Aaron Thompson on the issues of:

(a)    His recollection of the circumstances under which the mobile telephone being the subject property of the charge was found in his bedroom;

(b)   Whether Detective Senior Constable Bradbury and/or Constable Manning made any threat promise or inducement to him to induce him to provide a formal statement;

(c)    The full content of any unrecorded conversations between Thompson and Detective Senior Constable Bradbury and/or Constable Manning on 12 January 2012;

(d)   His motivation for identifying the defendant as the person who assaulted the complainant.

(e)    The inconsistencies in and between his electronic record of interview and his written statement.

Constable Travers Manning on the issues of:

(a)    Whether he and/or Detective Senior Constable Bradbury made any threat promise or inducement to Thompson to induce him to provide a formal statement;

(b)   The full content of any unrecorded conversations between Thompson and Constable Manning on 12 January 2012;

Detective Senior Constable Lynton Bradbury on the issues of:

(a)    Whether he and/or Constable Manning made any threat promise or inducement to Thompson to induce Thompson to provide a formal statement;

(b)   The full content of any unrecorded conversations between he and Thompson on 12 January 2012.