Police v CM

[2011] QMC 14

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v CM [2011] QMC 14

PARTIES:

POLICE

(respondent)

v

CM

(applicant)

FILE NO/S:

MAG238526/10(8)

DIVISION:

Magistrates Court

PROCEEDING:

Application to Cross Examine a Witness in a Committal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

17 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

MAGISTRATE:

Callaghan CJ

ORDER:

The application is granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – inconsistent statements – credibility of central Crown witness – prosecution consent to cross-examine - admissibility of expert opinion – s 590AA Criminal Code applicability.

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

COUNSEL:

G Elson for the respondent

C Martinovic for the applicant

SOLICITORS:

Director of Public Prosecutions for the respondent

Nguyen  & T Lawyers for the applicant

1. CM, the Defendant, is charged with one count of sexual assault and four counts of rape.  All offences are alleged to have occurred on 19 December 2010 at the residence of JR (“the Complainant”), the Defendant’s former de facto partner and the mother of two children of the Defendant.

1. The Complainant alleges that the Defendant came to her residence the afternoon before and would not leave the residence that evening.  On the following morning, 19 December 2010, he came into her bedroom forced her to touch his penis (the sexual assault), forced his penis into her mouth (the first count of rape), placed his fingers and fist into her vagina (the second count of rape), pulled her on top of him forcing his penis into her vagina (the third count of rape) and finally inserting his penis into her vagina with him in a position on top of her (the fourth count of rape).

1. This is an application by the Defendant pursuant to s 83A(5AA) of the Justices Act (“the Act”) for a direction that the Complaint and the witness WS be examined and cross-examined and a direction that the witness FK be cross-examined.

1. Section 110B(1) of the Act provides –

“A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement.”

The Onus of Proof

1. The onus of satisfying the court as to whether there are substantial reasons why, in the interests of justice, the maker of the statement should attend to give oral evidence or be made available for cross-examination of a written statement is on the Defendant[1].

   [1]            See Police v ED [2011] QMC 3 at paragraph 5 and the cases referred to therein.

The Complainant

1. The Defendant argues that the credibility of the Complainant, the question of consent to the sexual activity or the Defendant’s belief in such consent being given are the central issues in these charges.