Police v CM
[2011] QMC 14
•17 June 2011
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
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.
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).
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.
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
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
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.
There are a number of matters which the Defendant points to as establishing why the complainant should be directed to attend court and be cross-examined. They are:-
1.A questioning as to why the Complainant allowed the Defendant to stay at her residence overnight in the light of the fact that a Protection Order under the provisions of the Domestic and Family Violence Protection Act 1995 was in existence disallowing such contact;
2.The fact that there was no mention of rape of her in her 000 call at 4.30 pm on the afternoon after the alleged rapes (which allegedly occurred much earlier in the day);
3.The fact that it is stated in the police notebook statement by her that “I don’t like doing this sort of thing” goes to her giving consent and the fact that there is no mention by the Complainant of her being on top of the Defendant in the notebook statement;
4.The fact that in her s 93A statement which was a digital recording of her police notebook statement she told the police that she didn’t complain of rape but only that he had been hurting her;
5.The questions as to what occurred over the hours when the Defendant was at her residence; for example why didn’t she leave when he showered;
6.The fact that she emphasised to the police that it was the Defendant who was responsible for her children been taken from her by the Department and that he was also responsible for her estrangement from her family which would give rise to a motive for her to falsify what she has said in order to cut off any future association with him;
7.The text messages in the days leading up to the incident indicated extensive contact between them.
WS
The Defendant seeks to cross-examine the witness WS because WS says that the Complainant told her that the Defendant had raped the Complainant whereas the Complainant does not allege that she made such statement to WS.
FK
The Defendant seeks to cross-examine the witness FK who has made two statements in the matter. FK is a legally qualified nurse who says she has specialist qualifications in forensics and who works as a full-time Forensic Nurse Examiner. In her first statement dated 11 March 2011 she indicated in paragraph 22 that “The laceration and swelling of the labia minora indicates penetration by an object larger than a penis.” In paragraph 11 of her second statement dated the 4 May 2011 she says “Referring to paragraph 22 of my original statement I wish to clarify my opinion. I intend to convey that the history given by (the Complainant) provides an explanation for these injuries seen in examination.”
Furthermore the Defendant wishes to challenge the admissibility of the opinion evidence of the witness FK by challenging her expertise to give such evidence.
Substantial reasons, why, in the interests of justice
Section 110B(1) of the Justice Act 1886 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.”
As has been said previously[2] this section was inserted into the Act in 2010 as a result of the passing of the “Civil and Criminal Jurisdiction Reform and Modernisation Amendment 2010”. These amendments restrict the calling and cross-examination of Prosecution witnesses from what occurred previously.
[2] Police v ED [2011] QMC 3 at paragraph 16
The phrase “substantial reasons why, in the interests of justice, the maker (of the written statement) should attend to give oral evidence” was specifically placed into Queensland Legislation by the Parliament as it had been used for some 20 years in New South Wales and accordingly guidance from New South Wales authority on the meaning of the phrase must be given considerable weight. In Police v K[3] the decision of Hanna v Kearney and Another[4]was summarised as follows –
[3] [2011] QMC 002
[4] [1998] NSW SC 227
“1.The primary aim of the legislative intention was to limit the time occupied in Committal Proceedings. 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 interests of justice for reasons that are reasons of substance;
2.There can be no rigid or exhaustive definition of what constitutes “substantial reasons”. The Application to cross-examine requires identification and consideration of the objective of the cross-examiner and the frame work of the Prosecution case. His Honour said that to require a witness to be cross-examined without a definite aim but in the hope of eliciting some evidence that might prove to be useful to the Defence would not constitute “substantial reasons”;
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 establish grounds for a no true bill application or to limit it to situations where such cross-examination is likely to substantially undermine the credit of an important witness. “Substantial reasons” may also be found elsewhere.
4.On any such application to cross-examine a witness the fundamental objective of committal proceedings must be born in mind; namely the objective of facilitating a fair trial. His Honour went on to say that 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 relative opinion held by a witness. His Honour said that these examples were not meant to be exhaustive.
5.“Substantial reason” may be shown where cross-examination may lead to the narrowing of matters in dispute. His Honour said that this was a consideration of particular importance where the prospect exists of a lengthy trial.”
Each case depends upon its own facts and there can be no rigid or exhaustive definition as to what constitutes “substantial reasons”[5].
[5] See DPP v Losurdo and another [1998] 44 NSW LR 618
This Application
The Complainant
As said earlier the issues, according to the Defendant’s Counsel, which will decide this matter are the credibility of the Complainant and the question as to whether or not the Defendant has acted under an honest belief that he had her consent to do what he did. In her statement signed on 9 March 2011 the Complainant, who had been in a relationship with the Defendant for some four years until they separated in 2009, stated that the Defendant beckoned her home. She stated she went home notwithstanding the Protection Order which prohibited him having any contact with her, as she did not wish to have any trouble with her landlord as she previously has had with the Defendant looking through windows. She stated she walked from the bus stop where he had been waiting and where she got off the bus to her door and opened it and he just pretended that everything was alright and followed her inside. She stated she asked him to leave on numerous occasions but he didn’t listen and he ended up staying the night and watched television in the lounge room. Later that evening she stated she went to bed. On the following morning she stated she was awoken by the Defendant, tripping as he entered into her room. He hopped into her bed lay down and then did the acts referred to earlier in the particulars of the charges. She stated that at no time did she give the Defendant consent to touch or have sex with her. When the incidents had finished she stated she got up went to the toilet, got some clothes and then had a shower. After showering she sat down on the lounge. She stated that the Defendant had a shower before he came out into the lounge room. She stated she recalls watching a television show and after a while she stated the Defendant went back into the bedroom and fell asleep. She stated she grabbed the Defendant’s phone crept outside called her friend, (the witness WS), told her what had happened and then called 000 and reported what had happened to the police. Defence Counsel argues that there are substantial reasons why in the interests of justice he should be allowed to cross-examine the Complainant as to why she allowed the Defendant to stay over night. Part and parcel of such cross-examination would also be questions as to why she did not telephone her friend or 000 on some earlier occasion throughout the course of the evening or throughout the course of the day (the evidence is that the call to 000 was not made until about 4.30 pm).
I am not of the view that this by itself would amount to substantial reasons as to why in the interests of justice a cross-examination ought to be allowed. There does not seem to be any definite aim in respect of this particular cross-examination but merely a hope of eliciting some evidence that might prove to be useful to the Defence and as was stated in Hanna v Kearney and Another supra this would not constitute substantial reasons. However for reasons which follow I am allowing some limited cross-examination on this issue.
The next argument mounted by Defence Counsel is that she did not mention rape in her 000 call to the police. The call reveals that she said to the police that her ex-partner would not leave and she had been trying to get him to leave. She stated that her ex-partner had bashed her a few times and she was bruised. She stated she was really scared as he had hit her so many times.
Defence Counsel wants to ask her why she did not state that she had been raped. He wants her to particularise the bruising she said she suffered after this bashing (when there was no medical evidence that there was any bruising to corroborate her). He wants to ask her why she took all day to make the 000 call.
The fact that she failed to mention any of the rapes in her 000 call whereas she does mention them in her statement made months later on 9 March 2011 is an inconsistency which gives rise to a substantial reason why in the interests of justice she should attend to give oral evidence. This inconsistency surely undermines the credibility of this witness who is an important witness in the Crown case. Her reasons for not mentioning the rape in the 000 call ought to be given to Defence Counsel as well as the Prosecution so that both are aware of what she would say in response to questions along those lines before the jury and should the matter proceed to trial.
I am further satisfied that there are substantial reasons why in the interest of justice she should be required to give evidence under this category because it may well transpire that her reasons for not mentioning the rape in either this call or the call to her friend, the witness WS, may render her evidence so unreliable that a Magistrate would not rely upon it for the purpose of determining whether or not to commit this Defendant for trial[6].
[6] See Purcell v Quinlan (1995) 80 A Crim R 261; [1996] QSC 10 (14 February 1996)
The Defence Counsel also argues that there are substantial reasons why in the interest of justice the Complainant should be called to be cross-examined due to statements she made in the statement to the police which was recorded in the police notebook Exhibit B in these preliminary proceedings. After describing (at page 33 of the notebook) that the Defendant had put his penis into her vagina she said “He jumped off me. During between start and finish Michael put his whole fist in my vagina. It hurt me. I don’t remember which hand he used. I was scared. I don’t like this sort of thing …”. Defence Counsel argues that this goes to the issue of consent. He says that it suggests that she has done this sort of thing before.
In my view there is not a substantial reason why in the interest of justice she should be allowed to be questioned this particular statement. Even if she had, as hypothesised by Defence Counsel, done this sort of thing before, she unequivocally says she doesn’t like it. She is therefore unlikely on the basis of this to give consent without force or coercion. I do not agree that any cross-examination along these lines would assist the Defendant in his defence.
Also in the statement she gave to the police as recorded in the police notebook there is no mention by her of her being on top of him whereas this is fully particularised in the statement. Certainly there is an inconsistency here but arguably an understandable inconsistency given the various particulars of the alleged rapes. It is certainly an inconsistency that could be pointed out to the jury if the matter proceeds to that end, by the Defence (who would argue that it points to her making up the allegations and forgetting this part of it) and by the prosecution (who would argue that the inconsistency shows she is not making it up for if she was then surely she would do a better job of it and get all the “false” allegations correct). It is not necessary in the interests of justice for the reason for not mentioning the “on top” allegation to be given at this stage in this matter.
The next matter argued by Defence Counsel is that in her s 93A statement, which was really a digital recording of the police notebook statement, she confirms to the police she didn’t complain of rape to either them in the 000 call or to the witness WS. Her lack of complaint of rape is well covered in the cross-examination which I am going to allow concerning her lack of complaint of rape to either the police or to the witness WS when she made those first calls on the afternoon of 19 December 2010.
The next item which Defence Counsel argues he ought to be allowed to cross-examine the Complainant on is as to what occurred over the hours when she did have an opportunity to leave for example when the Defendant was showering or otherwise in the bedroom and she didn’t in fact leave. This argument really fits back into the first category of argument raised as to why she allowed him to stay overnight. I do not think that by itself it raises substantial reasons as to why in the interest of justice the witness ought to be required to attend and be cross-examined. Given though that her credibility has been firmly put into question in respect of the non-complaint of rape in the 000 call and in the call to her friend the witness WS it seems to me that the Defence Counsel is entitled to argue that the Complainant is so unreliable that the matter ought not be committed for trial or alternatively even if it is committed for trial the Director of Public Prosecutions ought, in the exercise of his discretion, advise the Attorney to enter a no true bill. Questions as to this issue ought therefore be asked at this stage of the committal proceedings as they may add to the body of evidence used by the Magistrate in determining whether or not to find the witness to be unreliable or by the Director’s office in determining whether or not to proceed any further with the Prosecution.
The next category argued by Defence Counsel is that the Complainant emphasised to the police that the Defendant was responsible for her children being taken from her and that he was responsible for her estrangement from her family. Defence Counsel wishes to put to the Complainant that by making these comments she wanted to cut off any further association with the Defendant and that would place her in a better light with the Department of Child Safety to retrieve her children plus re-establish connections with her family.
This reason by itself would not be a substantial reason in the interest of justice to allow cross-examination, however, it does allege a motive for her to make a false complaint about rape and will be added to the body of evidence used by a Magistrate to consider whether or not she is unreliable. I therefore will allow questions of the Complainant of this issue as I am of the view that there are substantial reasons why in the interest of justice the cross-examination on this issue should be allowed.
The next point argued by Defence Counsel is that the text messages in the days leading up to the incident indicate an ongoing relationship between the Complainant and the Defendant. For instance on 8 December 2010 it seems on the records that have been produced in this Application that she as part of text to the Defendant said words to the effect of “Wake up to yourself be a real man and take care of your kids for a start and then your woman … I don’t give a fuck if you leave me I honestly don’t need a man in my life as I have my three beautiful sons …So Mr CM grow up or fuck off.” On 18 December she also sent a text to the Defendant stating words to the effect of “Thank god for that so you will be over tomorrow right to go to Glady from my place.”
That last text message is arguably encouragement for the Defendant to come over to the Complainant’s place the following day that is the 19 December. I am of the view that there are substantial reasons why in the interest of justice she should be asked questions about that particular text message in the context of their relationship as evidenced by the text message prior to that date coming to the Defendant from her telephone because that will go directly to her credibility and to evidence which can go to his belief as to consent.
Before I pass on from the Complainant I make the comment that I would have thought that the prosecution in a case such as this, when the Complainant is central to its case and her credibility is legitimately brought into question, would need to see the Complainant answer questions on these issues so that a proper consideration and assessment of her evidence could be undertaken in order to determine whether to proceed any further with the charges should the Defendant be committed for trial. This, in my view, is also a substantial reason why in the interests of justice such a complainant should be required to give evidence at a committal proceeding.
The witness WS
The Defence Counsel argues that the witness WS says in her statement that the Complainant told her that the Defendant had raped her, whereas the Complainant does not say any such thing in her statement. The Complainant says in her statement at paragraph 20 that “I called my friend S and told her what had happened before hanging up” this doesn’t say that she didn’t tell the witness WS that the Defendant had raped her because paragraph 20 immediately follows on the description of the four alleged rapes and the sexual assault. So if she did in fact tell the witness WS that the Defendant had raped her then there is no inconsistency. If she didn’t tell the witness WS that the Defendant had raped her then as the witness WS does say that she said the Defendant raped her there is an inconsistency with what the witness WS says but that inconsistency doesn’t add anything to the case for the defendant.
I am not satisfied that there are any substantial reasons in the interest of justice as to why the witness WS ought to be cross-examined on this ground.
The witness FK
As stated earlier Defence Counsel wishes to cross-examine this witness as to what she meant by paragraph 22 of her first statement where she says that “the laceration and swelling of the labia minora indicate penetration by an object larger than a penis” when compared with her clarification in paragraph 11 of her second statement where she said in reference to that paragraph that “I intend to convey that the history given by Ms JR provides an explanation for the injuries seen in examination”. What she is simply saying there, as I read it, is that the injuries are consistent with the stated method of assault as stated by the Complainant. There are no substantial reasons as to why in the interest of justice she ought to be called to be cross-examined by this quite unequivocal explanation.
As stated earlier Defence Counsel also wishes to challenge her expertise. In my view should this matter proceed to trial her expertise or otherwise and therefore the determination of whether she would be allowed to give opinion evidence before a jury is a matter more appropriately dealt with pursuant to s 590AA of the Criminal Code. A Magistrate’s ruling is not binding upon the conduct of a trial. Whether or not this witness can give such opinion evidence in the committal proceeding will not matter one way or another to the determination of a Magistrate as to whether the Complainant is an unreliable witness and therefore whether or not there is sufficient evidence to place the Defendant upon trial.
Orders:
Pursuant to s 83A(5AA) of the Justices Act 1886 I, by direction, require the prosecution to call the Complainant to be made available for cross-examination on her written statement on the following issues:
(a)Why the Complainant allowed the Defendant to stay overnight when there was a Protection Order in place prohibiting him from having contact with her;
(b)What occurred over the hours subsequent to the alleged rapes when it seems the Complainant had the opportunity to leave the residence;
(c)The reason for the failure by her to mention to the police in her 000 call that she had been raped;
(d)The reason for the failure by her to mention to the witness WS in her call to her that she had been raped;
(e)The alleged motive of the Complainant to make a false complaint of rape as the defendant was responsible for her children being taken from her and her estrangement from her family;
(f)
The contents of her text message to the defendant of 18 December 2010 in the context of their relationship.
The Application to cross-examine the Complainant on any other issue and to cross-examine the witnesses WS and FK is otherwise dismissed.
2