Police v BCR
[2011] QMC 29
•16 August 2011
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 |
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.
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).
The applicant seeks to cross-examine 9 prosecution witnesses.
Legal issues
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.
Prior to that the defence had a general right to cross-examine all prosecution witnesses at committal.
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
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.
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’.
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
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, considered by the New South Wales Courts and is generally regarded as working satisfactorily…” [3]
[3] Hansard p1255
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 also refer to the New South Wales test and the cases on it in the following passage:
“Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.
The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1988 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1988 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactory. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision.
The relevant principles applying in New South Wales to the operation of section 91 of the Criminal Procedure Act 1988 (NSW) and the meaning of “substantial reasons, in the interests of justice”, were summarised in Sim v Magistrate Corbett & Anor by Whealy J as follows:
“1.The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.
2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.
3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.
4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.
5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.
6. 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. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.
7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.
8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.”
It follows that in interpreting the term “substantial reasons” considerable assistance may be obtained by reference to the New South Wales authorities. The meaning of that term was considered by the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and another[4] where the Court indicated its agreement with the following observations by Studdart J in Hanna v Kearney and another[5]:
“1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2. There can be no rigid or exhaustive definition of what constitutes "substantial reasons" and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine 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". It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.
3. It would be wrong to limit "substantial reasons" to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit "substantial reasons" to situations where cross-examination is likely to substantially undermine the credit of an important witness. "Substantial reasons" may well be found elsewhere.
4. On any application under s 48E 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. I do but give those instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (supra) at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases. “
[4] [1998] 44 NSWLR 618 at 627
[5] 28 May 1998, NSWSC unreported
In referring to the New South Wales cases it must be borne in mind that the Queensland legislation only establishes the one test, that of “substantial reasons”, which is a less onerous test than the test of “special reasons” which applies in New South Wales to offences involving violence.
The objective of facilitating a fair trial is a fundamental consideration in determining whether cross-examination should be allowed. The High Court in Burton v The Queen[6] explained the importance of committal proceedings in the protection which the criminal process gives to an accused person.
[6] [1980] 147 CLR 75; see also Grassby v The Queen (1989) 168 CLR 1
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 explained that the restriction on cross-examination is not inconsistent with achieving the principal purposes of a committal proceeding:
“According to the High Court (Grassby v The Queen (1988) 168 CLR 1 and Barton v The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are to:
·ensure the defendant is not put on trial on indictment without sufficient cause;
·allow the defendant to learn the case against him or her; and
·marshal the evidence into deposition (written) form.
Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.”
In determining the extent of any cross-examination, this Court must have regard to the purposes of committal proceedings.
This Court must also be alert to not creating a situation which will necessitate the holding a preliminary examination of witnesses (a Basha inquiry) by the District Court. As observed by Rothman J in Abdel-Hady v Magistrate Freund:
“The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice.”[7]
[7] (2007) 177 A Crim R 517
The history and scope of Basha inquiries was considered by his Honour, Judge Durward in R v B (No.2)[8] where he quoted from the decision of Hunt CJ at CL in R v Sandford[9]:
“I maintain my belief in the obvious value of such a procedure – by whatever name it may be called – provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No.2) (1990) 48 A Crim R 49 at 59 – 60.
The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales[10] (at 219, 233); R v Basha[11] (at 539).”
[8] [2010] QDC 417
[9] (1994) 33 NSWLR 172 at 180 - 181
[10] (1987) 10 NSWLR 215 at 233
[11] (1989) 39 A Crim R 337 at 339
Applicant’s submissions
The applicant seeks to cross-examine complaint C1 and a number of witnesses on various topics set out in the application in a schedule under the column headed “general issues”. I will attempt to address these in turn.
1. The basis for C1’s belief that the applicant is the father of her child.
C1 expresses this belief in her statement. I am told that DNA analysis of a mouth swab taken from the applicant has excluded him as the father of the child.
As the complainant alleges the applicant had unprotected intercourse with her on a number of occasions during the relevant period, it is not surprising she might suspect he was responsible for her becoming pregnant.
It is sought to cross-examine C1 and investigating police to attempt to find the basis of her opinion that the applicant was the father of the child and to challenge her credibility. In argument Mr Mac Giolla Ri failed to advance any logical basis for suggesting this course was important to the applicant’s defence other than it might elicit inconsistencies in the complaint’s account.
I am not persuaded that any substantial reason has been established for permitting cross-examination of C1 or officers Garrett and Thomas on this topic.
2. Details from Det Sgt Garrett on efforts to contact “Dee”.
In the statement of C1 she says she told a woman Dee she was raped by the applicant.
In my view the applicant is entitled to the information sought in order to properly prepare the defence case. However, this taken alone does not establish a proper basis for cross-examination. The request is really one seeking disclosure. The request could easily have been satisfied by an addendum statement.
At the hearing of the application the prosecution offered to obtain an addendum statement but did not produce one. Nor did it advance instructions as to what would be forthcoming in such a statement. Either course would most likely have made an examination unnecessary.
In the absence of a timely response from the prosecution I consider I have no option but to order that Det Sgt Garrett attend to be questioned on this matter.
3. Details for Det SGt Garrett on efforts to contact “Michael” and examination of the complainant on the issue of that mans conduct towards her.
A witness W1 gave a statement that C1 told her a homeless man named Michael had raped her. There is nothing to suggest any proximity in time or place to the alleged rapes by the applicant. However, W1 said that although C1 made the allegation against Michael she made no allegation against the applicant.
Although not referred to in argument, I must consider the provisions of s 4 of the Criminal Law (Sexual Offences) Act 1978. I consider that the failure of the complainant to implicate the applicant while implicating another in rape raises an issue of substantial relevance.
I will allow cross-examination of C1 on the topic of Michael, but limited to the issue identified in my reasons.
I will allow questioning of W2 on whether any further detail was provided in the allegation against ‘Michael’.
I will allow Det Sgt Garrett to be questioned as to efforts to contact Michael.4. Examination of C1 on allegation that she threatened to say that W3 had raped her.
I consider that this allegation has potential relevance to the veracity of the complainant’s allegation against the applicant. I will allow cross-examination of C1 on this issue. I will also allow W2 to be questioned as to whether there was any further detail in the allegation about W3.
The application to examine Sen Const Thomas was withdrawn.
5. Cross-examination of C1 on her criminal history.
The complainant’s criminal history has been provided to the defence. There is nothing in the previous convictions of particular relevance to these allegations. An opportunity to try out questions at committal in preference to first asking them in the presence of a jury is not of itself a sufficient basis to raise “substantial reasons”.
The request is denied.
6. Details of sexual abuse of C1 when she was younger.
The witness W4 recounted being told by C1 during a discussion about sexual abuse that “something like that happened to me when I was younger”. This, he says was in September 2004. C1 places the first alleged rape by the applicant as occurring after this time.
Applying s 4 of the Criminal Law (Sexual Offences) Act 1978 it is not apparent to me that this abuse has substantial relevance to the facts in issue. Accordingly, leave to examine on this topic is not granted.
7. Examination of C1 on any attempts to have the applicant “bashed”.
This alleged conversation is not inconsistent with the evidence of the witness that the complainant made a complaint of rape to him. The only apparent purpose of cross-examination would be to elicit information to attack the character of the complainant as a person who would contemplate such a thing. It does not give rise to a substantial reason for cross-examination upon the committal.
8. Examination of C1 on other occasions when she was raped.
The complainant’s statement explains that she has exhausted her memory on the details of these events. She says “the first and last times are clear to me and the rest are a blur because of all the paint I was sniffing”.
The applicant does not raise a substantial reason for cross-examination on this basis.
9. Details of any counselling or treatment undertaken by C1.
I have not been provided with any information suggesting C1 has received counselling or treatment. This appears to be a speculative application. It is denied.
10. Examination of W5 on the circumstances giving rise to her complaint to the police about C1.
The witness’s statement describes the circumstances in which she made the complaint to police. The submission on behalf of the applicant raised the possibility that there was some input by C1 in the making of this complaint. This suggestion appears to be wholly speculative.
I am not persuaded that there is a substantial reason justifying cross-examination of this witness on this topic.
We now turn to the case relating to the alleged rape of C2.
11. Cross-examination of Det Sgt Garrett on delay in charging the applicant with rape.
Counsel for the applicant indicates that he wishes to elicit whether the delay was due to reluctance on the part of the complaint. The officer’s statement suggests that this may be so. In the circumstances I consider this is of potential relevance.
I will allow cross-examination of Sgt Garrett on this basis.
I do not allow cross-examination of Sen Const Thomas.
12. Cross-examination of C1 on her memory of “the actual event”.
This applicant seeks to cross-examine the complainant at large on her statement as to the commission of the alleged rape.
The allegations as to what she says occurred are detailed in her statement. She gives an explanation for not making a full fresh complaint at the time.
The conversation at line 200 of the pretext call is consistent with the account given by the complaint at paragraph 19 of her statement.
The applicant would not be left in doubt as to the basis of the Crown case or be taken by surprise at trial.
A substantial reason is not raised in this regard.
13. Cross-examination of C2, W6 and W5 as to whether W6 assaulted C2 after been told of the rape.
Det Sgt Garrett recounted that W5 told her that C2 was beaten up by the husband when he was told what the applicant did to her. Both C2 and W5 described the husband as being angry when told. Neither describe him as having assaulted C2.
Had such an assault occurred it potentially may have had a bearing on the decision of C2 to persist in a complaint against the applicant.
I consider that a substantial reason is raised justifying cross-examination on this issue.
I will allow cross-examination of C2, W6, and W5 on whether C2 was assaulted by W6 on the relevant occasion and an examination of C2 on any impact on her decision making.
14. Examination of W7 on her memory problems.
This witness says in her statement that she suffers from a bad memory after receiving head injuries when assaulted on her 21st birthday.
A deficit in her memory may be relevant to the extent she is accepted as a reliable witness. The defence is entitled to have the extent of that deficit clarified prior to trial.
I will allow cross-examination of the witness on her mental condition.
ORDERS
15. The application to cross-examine is granted.
16. I direct pursuant to the provision of s 83A(5AA) of the Act that the prosecution call the following witnesses to be made available for
cross-examination on their written statements on the issues specified:
Samantha GARRETT
§Efforts to contact a person “Dee” referred to in the complainant’s statement
§Efforts to contact a person “Michael” referred to in the statement of W1
§The reason for delay in charging the applicant with the rape of C2
C1
§The allegation that “Michael” raped her
§The alleged threat to say W3 raped her
W2
§The allegation by C1 that “Michael’ raped her
§The alleged threat by C1 to say W3 raped her
C2
§Whether W6 assaulted her upon being told of the alleged rape.
§Any impact any such assault had on her.
W6
§Whether he assaulted C2 upon being told of the truth of the alleged rape.
W5
§Whether W6 assaulted C2 upon being told of the alleged rape.
W7
§Her mental condition and memory problems.
2
7
1