Police v BCR

[2011] QMC 29

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v BCR [2011] QMC 29

PARTIES:

POLICE

(prosecution)

v

BCR

(defendant)

FILE NO/S:

MAG37900/11(7)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross-examine witness in a committal proceeding

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

16 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2011

MAGISTRATE:

Judge Butler SC, Chief Magistrate

ORDER:

Application to cross-examine granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons – sexual offences

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

COUNSEL:

M Spencer (solicitor) for prosecution

E Mac Giolla Ri for defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for prosecution

Russo Mahon Lawyers for defendant

1. This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that prosecution witnesses be required to attend to be cross-examined upon committal proceedings.

1. The applicant, BCR is charged with three offences against a complainant C1 namely –

   §Rape( 17 June 2004 to 31 December 2004)

   §Rape (21 June 2006 to 7 October 2006)

   §

   Indecent act with intent to insult or offend (1 January 2006 to 30 June 2006)

   
   
   

   And a further offence against a complainant C2, namely rape (1 May 2006 to 1 June 2006).

1. The applicant seeks to cross-examine 9 prosecution witnesses.

Legal issues

1. The law for the conduct of committal proceedings in Queensland changed in 2010 upon the passage of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.

1. Prior to that the defence had a general right to cross-examine all prosecution witnesses at committal.

1. The amendments now forbid a magistrate to require a witness to appear and to submit to cross-examination unless a direction is made under s 83A(5AA). Such a direction must not be made unless the magistrate:

   “is satisfied there are substantial reasons why, in the interests of justice, the maker [of a written statement] should attend.”[1]

   [1] S 110B(1) Justice Act 1886 and s 14A(1) Acts Interpretation Act 1954

2. The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purposes of the legislation.

1. The legislative scheme seeks to limit the receipt of evidence in committal hearings to written statements and real exhibits unless a suitable basis in shown. Oral examination is not available on request, and may only be ordered where “substantial reasons” are demonstrated. Accordingly, the mere loss of an opportunity to cross-examine without more could not amount to a ‘substantial reason’.

1. When interpreting legislation extrinsic material may be considered in order to remove ambiguity or confirm an interpretation.[2]

   [2] S 14B Acts Interpretation Act 1954

1. The Attorney-General in the second reading speech for the Bill, delivered on 13 April 2010, said:

   “New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years,…