Police v DAG
[2012] QMC 1
•27 January 2012
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.
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.
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)
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.
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.
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.
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.
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.
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 the witness is required to be called by the prosecution because a direction has been issued under section 83A(5AA).
There are procedural provisions contained in the Act[6] that the parties must comply with before a section 83A(5AA) application can be made. These provisions have been complied with.
[6] Section 110B(3) Justices Act 1886.
This application is bought pursuant to section 83A(5AA):
(5AA) A magistrate may also, at a direction hearing, give a direction
under this section requiring the prosecution to call the maker of a
written statement tendered or to be tendered by the prosecution under
section 110A(3);
(a) to attend before the court as a witness to give oral evidence; or
(b) to be made available for cross-examination on the written statement.
Subsection (5AA) applies subject to section 110B which provides as follows:
“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 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 on the written statement is on the defendant.[7]
[7] Sim v Magistrate Corbett [2008] NSWSC 665 and Hannah v Kearney [1998] NSWSC 227 and Quami v DPP and Anor [2008] NSWSC 675.
The Witness (subject to the application).
The complainant, CMB was, at the time of the alleged offences the step daughter of the applicant. The applicant seeks an order that the complainant be made available for cross-examination on the following issues – relevant to the central issue as to whether or not any of the sexual acts alleged were perpetrated by the applicant upon the complainant:
1. Her exact recollection of events and inconsistencies between her account and that of any witness
2. Any preliminary complaint
3. Her involvement of other allegations of a similar nature against any other person
4. Her previous criminal record / behaviour
5. Why her child was taken off her by DOCS
6. Her relation with the defendant after any complaint.
It was conceded by the applicant at the hearing of the application that issue contained in 5 would not be pursued during the course of any cross-examination I might order given the (subpoenaed) production of the DOCS file to the Registrar.
Substantial reasons in the interest of justice.
The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purpose of the legislation.[8]
“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.”[9]
[8] Citing His Honour Judge Butler – Police v DBW [2011] QMC 4.
[9] Section 110B(1) Justices Act 1886.
This section was inserted into the Justices Act in 2010 as a result of the passing of the “Civil and Criminal Jurisdiction Reform and Modernisation Amendment 2010”. The amendments then restricted the calling and cross-examination of witnesses when previously there was an inherent right to cross-examination.
The provisions restricting cross-examination are based on section 91 of the Criminal Procedure Act 1988 (NSW). The principles applying in New South Wales relevant 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[10] by Whealy J as:
[10] [2006] NSWSC665.
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 s91 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 s93; 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.”
Earlier the term “substantial reasons” was considered by the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and another[11] where the Court followed the matters identified in Hanna v Kearney and another;[12]
[11] [1998] 44 NSWLR 618.
[12] [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" 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".
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 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.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute. This is a consideration of particular importance where the prospect exists of a lengthy trial.
The High Court in Burton v The Queen[13] explained the importance of committal proceedings in the protection which the criminal process gives to an accused person and identified the important aspects of the committal process as to:
[13] [1980] 147 CLR 75
1. ensure the defendant is not put on trial on indictment without sufficient cause;
2. allow the defendant to learn the case against him or her; and
3. marshal the evidence into deposition (written) form.
The Court went on to say:
“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.”
It is clear in my view that the philosophy of the legislation restricting the right to cross-examine witnesses at a committal proceeding should not compromise the right to a fair trial. The issue was addressed by Deputy Chief Magistrate Hine in the matter of KD v Police[14] in which he His Honour re-produced the following observations and comments in the matter of Poliakov v Magistrate Andrew George[15] - in which case the appeal court overturned the initial decision refusing cross-examination stating:
[14] [2011] QMC 5.
[15] [2009] NSW SC 1133.
“ … In Chapman v Gentle (1987) 28 A Crim R 29, Yeldham J held, albeit in a slightly different context, that “the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial” (at p 32). In Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618, the court was called upon to consider an appeal from the decision of Hidden J in R v Losurdo (1998) 103 A Crim R 162. After reviewing a number of authorities the court said:
These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word "substantial" by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to The Macquarie Dictionary referred to by his Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary (1989). But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them. (at 622-3).
The court continued;
The Attorney-General referred to the major features of the Justices Amendment (Committals) Bill 1996 (NSW) and continued (at pp 4671-4672);
"Concern has been expressed by opponents of the bill in its present form that it will bring about a blanket prohibition on cross-examination. This has never been the Government's intention; nor does the Government believe that such a result would have eventuated. However, for more abundant caution, to ensure that such a result does not occur, the Government will move that the requirement be for `substantial' rather than `special' reasons to be demonstrated in relation to witnesses other than victims of violence.
As I have indicated, the phrase `substantial reasons' is intended to bring about a less stringent test than that which has been developed under the current section 48EA. The precise scope of the phrase will of course be subject to judicial interpretation. It would be unhelpful to attempt to exhaustively define it in the bill.
It is envisaged however that if cross-examination would be likely to result in discharge of the defendant pursuant to section 41(2) or 41(6) that this would amount to `substantial reasons ... in the interests of justice'. Similarly, the phrase would be expected to apply where there is a likelihood that cross-examination would demonstrate grounds for a no-bill application.
Another situation where `substantial reasons' may be held to apply would arise where it appears that cross-examination is likely to substantially undermine the credit of a significant witness (my emphasis). On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case `the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial.
In considering the application I also turn my mind to the issue of avoiding any possible preliminary examination of the witness or Basha[16] inquiry by the District Court. The issue was considered in the matter of Abdel-Hady v Magistrate Freund[17] during which His Honour Rothman J made the following comment:
“The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice.”
[16] [1989] NSWSC 39 A Crim R 337.
[17] [2007] 177 A Crim R 517.
Applicants ‘substantial reasons’ and respondents reasons for objection.
There has been no evidence tendered to me in the form of statements. The only material I have before me is the outline of both the applicant and the respondent and the written submissions by the applicant which I received at the hearing of the application.
Complainant’s memory and inconsistencies with other witnesses - Credibility.
The applicant submits the credibility of the complaint requires investigation for the following reasons relevant to recollection and inconsistency.
I am informed the following evidence forms part of the statements of the complainants and others and subsequent concerns relied on by applicant in support of application.
Complainant states the following in her statement:
paras 5 & 6
She remembers when she was about 3 or 4 (1991 – 1992) the applicant would say “You know I will always love you in more than one way.
(How does she remember this?)
paras 10 – 21 -
She alleges the 1st night they moved into their house in [address] (she was 10 years old i.e. 1998 – in grade 6) she followed the Applicant down to the bathroom where he wrapped a towel around her head, pulled her pants down, touched her vagina on the outside.
(Opportunity is relevant here and the placing of towel on head is strange. Further was this a one off occasion or a normal thing in household?)
paras 23 – 29
She relates an incident when she was 10 (i.e. 1998) definitely before she got her CD player which she got when 11 i.e. 8-11-99. On the Applicant’s birthday (1-6-99) she alleges that she was on top of the applicant who was lying across the doorway with her bedroom door shut and he was trying to inset his penis into her vagina for close to ½ an hour.
(Therefore the date is critical, notice of alibi may apply, and opportunity would be relevant).
para 30
She makes a general accusation with no reference to any date, time, incident except to say “after that night [DAG] would touch me and have actual sex with me where he would put his penis inside me every month or two.
(Need to cross-examine her as to any detail as to place and time or circumstance she alleges. Mother says she said it occurred at least once or twice a week. This evidence would be relied on as uncharged acts. Need to cross-examine as to any other uncharged acts. Further her mother states (para 22) there was a dramatic behavioural change in her daughter once they moved into [address]. There is a need to cross-examine her about her change of behaviour and reasons for it. [name] says in about June 2000 the family moved into the house he owned that they rented).
paras 33 – 42
The next incident she recalls is when she was 12 (2000) in grade 8 and living at [address]. She recalls standing at her chest of drawers when the Applicant asked her to come to his bedroom where he said “really nice boobies” and touched both breasts whilst standing behind her both outside and inside her singlet & bra.
para 43 -45
He then undid his pants, pulled out his penis & put her left hand around his penis. He then touched her vagina on the outside of her pants and then masturbated himself until ejaculation. She states she can’t recall whether he was circumcised or not because there didn’t appear to be much foreskin at all. Yet at para 66 she says “I am pretty sure that he was not circumcised.”
(If these things happened then one would think she would know for sure. She is alleged to have said to her girlfriend [name] (para 7) that she was forced to perform oral sex on the applicant although she does not mention performing oral sex in her statement. Her mother says in para 33 she wasn’t able “to provide any other description about his genitals” then later para 56 she said “he was probably not circumcised.”)
para 49
She recalls some conversation about the Applicant telling her about a place in England where fathers took their step-daughters to break them in.
(There is no other detail as to when this was said, what circumstances or anything else about this subject.)
paras 50 – 53
She recalls an incident when she was 12 the Applicant got her to watch him have sex with her mother who was asleep.
(Her mother does not mention any episode like this).
paras 54 – 65
Another time when she was 12 (November 2000) he asked her to come to his room and touched her bum, asked her to undress and tried to have intercourse with her.
(There are no particulars as to whether his penis partly entered or not. This is relevant as to whether attempted rape or rape.)
paras 65 – 68
When he came back in she saw his penis and he again tried to insert his penis into her vagina and eventually did and then stood up and masturbated himself and ejaculated into his hand.
(If this is the first time intercourse took place, this needs to be clarified.
paras 69 – 74
She mentions another time when she was 12 –13 (i.e. 2000 -01) she once again followed him into his room and had intercourse whilst she lay down in the corner on the floor. On this occasion she says they were interrupted by a noise of the back gate closing. She says this was her Aunty who saw that she was upset.
([name], her Aunty, at para 9 does not recall any such incident.)
There is no mention of any other act occurring after 2001 and therefore this needs to be clarified because the charges relate to a period between November 1998 & 2002.)
para 77
She talks about making a pre-text phone call to the applicant on 30th May 2010.
(Despite requests this tape has not been produced. Sgt Costa has informed the defence that he has been informed by Det. S.C. Nicol that there is no evidence yielded from the tape and that the defendant denied everything that the complainant put to him. (Need to ask the complainant what she did say to him. Mother also refers to this at para 74)
The applicant requests the Court to order that a copy of the tape be supplied to the applicant so that the Applicant be informed of what the complainant said to the applicant.)
In Easter 2003 the complainant & [name] ran away from home & on the 26 April 2003 Det. S.C. Buitendach (as he then was) had reason to speak to the complainant about her relationship with the Applicant. The detective says that the occurrence sheet indicates that she had been raped by her step-father. He noted she did not wish to make a formal complaint at the time. The complainant says in her addendum statement (8-1-1992) (para 3) that she made a complaint and doesn’t know what happened with her complaint and cannot remember being advised of the result of the complaint.
(Clearly this goes to her credit if she cannot remember as Det. S.C. Buitendach states she did not wish to make a formal complaint.)
Her mother says she talked to her daughter about contraception in Christmas 2004 (para 39).
(Questions need to be asked of the complainant as to when she got her first period and as to whether intercourse took place after that and if so what contraception was taken if any.)
Her mother mentions the complainant tape recording the applicant on 1st August 2010 (para 81).
(There is no mention of this in the complainant’s original statement but she does refer to it in her addendum statement (8/1/12) at para 7. The content and context of the conversations in this recording needs to be explained.)
The respondent makes no specific submission in respect of the issue of credit in the affidavit material.
Preliminary Complaint
The complainant does not mention making any complaint, let alone the content of any complaint she may have been made in any of her police statements.
The police brief contains statements of complainant from witnesses namely [name], [name], [name], [name], & her mother. Because the complainant doesn’t mention if she made any complaint to any person questions need to be asked about when, whether there are any other persons she has complained to and also the variances of what she has told the above people and what she alleges the applicant has done. Her mother says at para 22 that [name] would visit yet no statement has been obtained from her as to whether the complainant made a complaint to her and if not why not.
(Preliminary complaint is an exception to the hearsay rule (see sect 4A Criminal Law (Sexual Offences) Act 1978) and can be used to bolster or discredit a complainant’s evidence.)
The respondent admits a preliminary complaint was made by the complainant but says she need not be cross-examined on the matter as the police officer to whom the preliminary complaint was has been made available for cross examination
Any allegations against other person(s)
Although the complainant states in her addendum statement (8-1-2012) that “I have never made any other allegations against any other persons” there are references in her mother’s statement that she had made an allegation against an uncle to her grandmother (para 30), a note written by the complainant about an uncle and the allegations made in 2003 (para 50 & 53) and a mention of persons saying and doing things (para 73).
(Clearly these discrepancies not only go to credit but may go to the issue.
Her previous criminal record/behaviour
Although the prosecution has provided a copy of the complainant’s criminal history this does not disclose her previous criminal behaviour which obviously goes to her credit. Her mother talks about prior criminal behaviour re drugs (para 26 – 42).
(The prosecutor in his affidavit states the applicant does not state on what grounds this is relevant to charges she alleges occurred between November 1998 & November 2002. It is obvious this goes to her credit. (See sect 20 Evidence Act)).
The respondent submit that the criminal history of the complainant has been supplied and that the applicant has not stated the grounds upon which the criminal history is relevant to these offences in that these offences are alleged to have occurred between 1998 and 2002 in circumstances where the complainants history commences 2008.
Why (was) her child taken off her by DOCS?
The prosecutor in his affidavit says there are no grounds stated as to relevancy regarding this issue.
DOCS have been issued with a subpoena regarding this incident.
(The complainant & mother have failed to mention this event. This may be relevant as to a reason why the complainant has pursued her allegations depending on the time, the order and the allegation of any abuse to her child. In any event it is a matter that goes to her credit.)
The respondent states the applicant provides no grounds for cross-examination on this issue and further – the material has been subpoenaed from DOCS by the complainant.
Her relationship with the defendant after any complaint
In para 4 of her addendum statement (8-1-2012) she says she went and stayed with the defendant for about 1 month but he started getting weird again.
(Need to cross-examine her about this as to what she means and as to whether there were any other incidents that occurred when staying with him so that the Applicant is fully informed of all the allegations).
Mother says complainant and [name] lived for a while in the [address] premises (para 42). This is the address that the defendant and mother had occupied and rented.
(This would indicate she was getting on with the defendant and not just an occasional visit like Christmas and birthdays and sometimes baby sit the kids – as she says in para 5 addendum statement.)
Mother also says [name] & [name] stayed with them at [address] in August 2008. (para 45).
(Again there are inconsistencies between her statement and her mother’s.)
Her mother at para 55 talked about an incident where she came home and says saw the complainant standing in front of the applicant with a towel draped over her head with no clothes on. The complainant makes no mention of this.
(Need to cross-examine about this as to whether in fact this occurred or not. Any conversations with her mother leaving the applicant and this being a motive to resurrect old allegations which previously she didn’t want to pursue in 2003 and going to the police in May 2010.)
The respondent contends the acquisition of an addendum statement obtained from the complainant in respect of this issue has been supplied to the applicant and as such should abrogate of any need to cross-examine her.
Substantial Reasons for the Orders Sought
The applicant submits that the complainant’s credibility “looms large in this case” and there are a number of areas that need to be assessed by the Court which may significantly undermine her credibility and reliability as a witness.
It is further submitted that depending on the outcome of the cross-examination the credibility and or reliability of the complainant may result in the defendant not being committed to trial on some or all of the charges or the Crown may elect not to proceed on all or some of the charges at a later time. Further, the applicant submits that the brief of evidence at this point in time only discloses 8 specific offences not 11 as charged.
Alternatively the cross-examination may clarify these inconsistencies and resolve the credit issues. In that case the applicant would not be taken by surprise at trial by the resolution of those inconsistencies. It is submitted that in this event the issues would be narrowed. The need for all parties to be properly informed concerning the inconsistencies in the evidence and issues of credit constitute substantial reasons for allowing cross-examination on all areas as outlined above in paras (21) – (26).
Reasons.
In determining the extent of any cross-examination I must have regard to the purposes of committal proceedings and that is as previously mentioned 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 to marshal the evidence into deposition (written) form.
The prosecution have consented to the mother of the complainant being called for cross-examination. It is difficult to understand how any evidence obtained during cross-examination of the mother could be then considered in context without the corresponding cross-examination of the complainant.
Likewise the prosecution have consented to the police officer being presented for cross-examination. This witness will give evidence that he received a preliminary complaint from the complainant and again it would in my view be difficult to contextualise this evidence in isolation.
Orders.
Firstly I will dispose of that part of the application regarding disclosure. 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. I direct the prosecution to supply to the legal representative of the defendant any evidence pertaining to any pre-text phone call between the complainant and the defendant.
The application to cross-examine the complainant is also granted. I direct[18] that the prosecution call the complainant to be made available for cross-examination in relation to the following:
· Complainant’s memory and inconsistencies with other witnesses - Credibility.
[18] Section 83A(5AA) Justices Act 1886.
As to the complainant’s recollection of events and conversations with other witnesses relevant to her allegations against the defendant. Cross-examination should include investigation into the particulars of allegations made against the defendant relevant to the number of charges before the court.
· Preliminary Complaint.
As to the complainant’s recollection of the events before and after the making of the preliminary complaint including her memory of the details or particulars of allegations made to the police officer, Sergeant Christiaan Buitendach (as he was then).
· Any allegations against others.
As to whether or not the complainant has previously made any complaint of a similar nature against any other person.
· Her relationship with the defendant after any complaint.
As to all contact with the defendant subsequent to the second complaint being made. The application only raises matters relevant to any contact after the second complaint was made.
I do not allow the complainant be cross-examined on the following issues contained in the defendants application:
· Her previous criminal record/behaviour.
It is clear from the chronology that the matters relied on by the applicant, that is, allegations of drug use have to occur when the complaint was a minor. In any event any competent court would duly give a warning to the witness if asked questions the answer to which might incriminate the witness.
· Why (was) her child taken off her by DOCS?
The DOCS file has been subpoenaed and is before the court. The applicant has full access to the material and withdraw the application to cross-examine the complainant on this matter.
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