Police v DAG

[2012] QMC 1

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v DAG [2012] QMC 1

PARTIES:

POLICE

(respondent)

v

DAG

(applicant)

FILE NO/S:

MAG133287/11(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross-examine a witness in a committal

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

27 January 2012

DELIVERED AT:

Toowoomba

HEARING DATE:

25 January 2012

MAGISTRATE:

Stjernqvist H

ORDER:

Application granted

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESS - limitations on cross examination - onus of proof – “substantial reasons in the interests of justice – preliminary complaint – conflict of evidence – credit as an issue – fair trial – need for Basha inquiry

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

COUNSEL:

F Martin for applicant

T Costa (sergeant) for respondent

SOLICITORS:

Province Lawyers for applicant

Respondent on own behalf

The Application.

1. The application is bought by DAG (the applicant). DAG is charged with 11 indictable offences which include Indecent Treatment of a Child, Rape, Attempted Rape and Carnal Knowledge.

1. The applicant initially sought orders that the following witnesses be made available for cross-examination:

·    CMB (the complainant)

·    K-AG (mother of complaint and ex-wife of applicant)

·    Sergeant Christiaan Buitendach (police officer)

1. I am informed at the hearing of the application that the prosecution consent[1] to produce for cross-examination – the mother of the complainant and the police officer. It is the complainant who is relevant to the determination of this application.

   [1] Section 110A(5) Justice Act 1886.

1. The applicant further sought an order that I order the prosecution produce a copy of or a recording of a pre-text phone call (tape) that is alleged to have occurred between the complainant and the applicant on 30 May 2010. In my view the prosecution are obliged to disclose such evidence pursuant to the Criminal Code, Chapter 62 division 3, if it exists.

1. There is both a fundamental obligation, placed on the prosecution to ensure criminal proceedings are conducted fairly and of course to disclose all material it seeks to rely upon and in its possession unless that disclosure would be unlawful or contrary to public interest.[2]

   [2] Section 590AB Criminal Code.

Statutory Provisions and Onus of Proof.

1. As mentioned the defendant is charged with 11 indictable offences. The Justices Act1886 is relevant and provides that a magistrate has overall supervisory responsibility for any committal proceeding coming before the Magistrates Court.[3]

   [3] Section 103B Justices Act 1886.

1. The Justices Act provides that committal proceedings may be conducted by the examination of all evidence (including the examination of witnesses) to be offered on the part of the prosecution.[4]

   [4] Section 104 Justices Act 1886.

1. Section 110A(3)[5] provides:

   [5]Justices Act 1886.

If a written statement of a witness is tendered to them by the prosecution, the justices;

(a)       must, subject to the provisions of this section being satisfied, admit the statement as evidence; and

(b) must not require the witness to appear before them to give evidence or make a statement unless…