Police v DWB - [2011] QMC 4

MAGISTRATES COURT OF QUEENSLAND

CITATION:Police v DWB [2011] QMC 4

PARTIES: Police
(Respondent/Prosecution)

v
DWB
(Applicant/Defendant)

FILE NO: MAG214339/10(2)

DIVISION: Magistrates Court

PROCEEDING: Application

ORIGINATING COURT: Magistrates Court at Brisbane

DELIVERED ON: 3 May 2011

DELIVERED AT: Brisbane

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 - why in the interests of justice – proper understanding of nature of prosecution case

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

ADVOCATES: G Cranny (Sol) for the applicant
S Maleckas (Sol) for the respondent

SOLICITORS: Gilshenan & Luton Legal Practice for the applicant
Director of Public Prosecutions (Queensland) for the respondent

An application has been brought under s83A(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 application is brought by DWB (the Applicant) who is, under s408C of the Criminal Code, charged as a director of P Pty Ltd (the Company) with dishonestly obtaining bank credits from National Australia Bank Limited of a value of $1,101,317.09. The offence is alleged to have been committed on diverse dates between 24 November 2004 and 17 July 2005.

The applicant seeks to have 6 of the proposed prosecution witnesses cross-examined and has identified in respect of each of those witnesses the general issue upon which it is sought to have them cross-examined.

Legal basis for application to cross-examine

The Act provides that a magistrate has overall supervisory responsibility for a committal proceeding coming before the Magistrates Court.[1]
[1] s130B Justice Act 1886

Committal proceedings may be conducted by the examination, in the presence and hearing of the defendant, of all evidence to be offered on the part of the prosecution.[2] However, the Act makes provision for use of tendered statements in lieu of oral testimony and where a written statement of a witness is tendered by the prosecution, the magistrate:
“(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).” [3]
[2] s104
[3] s110A(3)

In the case of a legally represented defendant the Act provides:
“(5) Subsection (3)(b) does not stop the prosecution and the defence
agreeing that the witness will be present to be cross-examined.
(6) If a witness is cross-examined because of an agreement under subsection (5) or because of a direction given under section 3A(5AA), the justice must consider both the witness’s written statement and the oral evidence given by the witness.”[4]
[4] s110A(5) and (6)

It follows that the Court may not require a witness to appear and be examined unless either a direction has been given under section 83A(5AA) or the prosecution and defence both agree to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v DWB

Details

AGLC: Police v DWB [2011] QMC 4
Case: [2011] QMC 4
Decision Date: 3 May 2011

CaseChat Overview and Summary

In the case of Police v DWB, the defendant was being prosecuted for an offence under the *Weapons Prohibition Act 1995 (Qld)* and the *Criminal Code (Qld)*. The defendant applied to the court for leave to cross-examine witnesses in the committal proceedings, which was contested by the police. The matter was heard in the District Court of Queensland. The central issue before the court was whether the defendant had demonstrated substantial reasons justifying the need to cross-examine witnesses in order for the proceedings to be in the interests of justice and to enable a proper understanding of the nature of the prosecution case.

The court considered the statutory provisions and case law concerning the circumstances under which a defendant may be granted leave to cross-examine witnesses in committal proceedings. The court acknowledged that the discretion to grant such leave is not to be exercised lightly but must be balanced against the need for a fair trial. In assessing whether the defendant had shown substantial reasons, the court examined the evidence presented and the arguments from both parties. It found that the defendant had indeed demonstrated sufficient reasons to justify the need for cross-examination, as it was necessary to challenge the credibility and reliability of key prosecution witnesses. The court concluded that allowing cross-examination was in the interests of justice and would ensure a proper understanding of the prosecution case.

The District Court granted the defendant's application to cross-examine the witnesses, recognising the importance of the defendant's right to a fair trial and the necessity for a proper understanding of the evidence against them. This decision underscores the court's commitment to ensuring that justice is served in a manner that respects both procedural fairness and the substantive rights of the accused.

Orders

Orders of the court

Application to cross-examine granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.