Police v ED
[2011] QMC 3
•15 April 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v ED [2011] QMC 3
PARTIES:
Police
(respondent)
v
ED
(applicant/ defendant)
FILE NO/S:
MAG213068/10(5)
DIVISION:
Magistrates Court
PROCEEDING:
Application
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
15 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
28 March 2011
MAGISTRATE:
Callaghan CJ
ORDER:
The application is granted
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – onus of proof – reasons to justify calling the witnesses set out in the defendants communication – substantial reasons – why in the interests of justice – identification evidence
Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:
S Dickson for the respondent
J Wagner for the applicant
SOLICITORS:
Office of the Director of Public Prosecutions for the respondent
Chais Law for the applicant
ED (“the defendant”) is charged with one count of unlawful wounding, one count of assault occasioning bodily harm whilst armed, and one count of attempted robbery.
All charges arise out of the same alleged incident on 7 November 2010. The prosecution case is that the complainant, CLB, was walking in Fortitude Valley at about 3.30am on the relevant date. He heard someone yell at the driver of a silver Honda Civic hatch which then stopped. A short time later he was allegedly confronted by the defendant who commanded that he give him his wallet and phone. He says a friend of the defendant’s joined him and punched him on the chin before running away. He said the defendant then produced a screw driver, swung at him a number of times and connected with him in the stomach, the left forearm, and ultimately in his cheek. He says the defendant then ran away and got into a silver Civic which he thinks is the same one that had stopped earlier. He went to a friend’s home and later that day was taken to the police and made a complaint.
This is an application by the defendant pursuant to section 83A(5AA) of the Justices Act 1886 (“the Act”) for a direction that the complainant and a witness, IMJ, be cross-examined. Both are makers of written statements in the matter.
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 on the written statement is on the defendant[1]. In his “defendant’s communication” which is required under Section 110B(3) of the Act, the defendant, through his lawyers, first wrote on 28 February 2011 giving notice of an intention to cross-examine the complainant plus Mr IMJ. The defendant’s counsel said, “In support of this request and the intended application for witnesses to attend (which was listed for 28 March 2011 at 9.00am) it is outlined that both witnesses are to be cross-examined as to issues of identification and credibility.”
[1]See Sim v Magistrate Corbett [2008] NSWSC 665 and Hannah v Kearney [1998] NSWSC 227 and Quami v DPP and Anor [2008] NSWSC 675 followed in R v Blacklidge (Unreported) Decision Deputy Chief Magistrate Hine 11/3/2011 and in R v K (Unreported) Decision Magistrate Callaghan 18/3/2011
This first “defendant’s communication” whilst raising the general issues relevant to the making of the application[2] did not adequately set out the reasons to be relied upon to justify the calling of the makers of the written statements to give oral evidence[3].
[2]See Section 110B(3)(a)(ii)
[3]See Section 110B(3)(a)(iii) and the decision in R v K (supra)
As much was pointed out to the defendant’s counsel by the prosecutor in an email dated 14 March 2011. Subsequently on 23 March 2011 the defendant’s counsel emailed the prosecutor stating:
“...I advise that the reason(s) to be relied upon to justify calling the maker(s) of the statements for XXM concerns the veracity, credibility and strength of the identification evidence of both witnesses, Mr CLB and Mr IMJr as regards Mr CLB claiming in his statement to have ‘positively identified’ the defendant, Mr ED, whereas the ID Photo Board footage is far from as assertive. The credibility and/or veracity of Mr IMJ is also a significant issue as regards identification of the person who is said to have been seen as regards the implement found.
ID evidence is a significant factor in the case in both instances. It may well lead to a no case submission or at least a Trial Judge having doubts as to the continuance of the prosecution.”There was no positive response from the prosecutor.
The prosecution argues that these reasons are insufficient. Whilst they could have been expressed with more particularity, I am of the view that they do fall under the reason of the avoidance of the defendant being taken by surprise in a particular way at trial as the aim of the cross-examiner has been identified as being to attack the veracity, credibility and strength of the identification evidence of each witness.
The Complainant
[10] The Defendant argues that there is discrepancy in the evidence of the complainant as, in paragraph 36 of his statement, he says, “During the taking of this statement, I participated in a Photo Board viewing. I picked the male at number 8 as being the person responsible for stabbing me with the screwdriver. I signed my name next to the picture and signed and dated the rear of the paper, and wrote the number 8” whereas in the video and audio recorded photo board identification of the defendant he was not so sure.
[11] During the course of this application Exhibit B, a video and audio recording of the photo board identification process undertaken by the police with the complainant was played. In this process the investigating officer said words to the effect that they believed that one of the males participating the incident may be in the photo board and that the process was an attempt to identify that male. He later added again that there may be a male on the photo board who could assist them with their inquiries. I will discuss these statements later.
[12] The complainant looked at the Photo Board and after a short time said, “He looks familiar...number 8.” And a little later he said, “His face, just the way he looks, he looks like the guy from Sunday morning.” The police officer informed him that there were two persons involved in the incident and he asked the complainant which one of the two assailants he was referring to and the complainant said, “I believe he is the guy who stabbed me.” A little later, “I’m pretty happy with that.” It is not contested that the person depicted in the photo board in position 8 is the defendant.
[13] The argument from the defendant’s counsel is that the statements made in the identification process are materially inconsistent with what was stated in paragraph 36 as set out above. The statements made by the complainant in the photo board identification process such as “he looks familiar” and “he looks like the guy from Sunday morning” and “I believe he is the guy who stabbed me” certainly do not read as positively as what is said in the statement at paragraph 36.
The Witness IMJ
[14] IMJ didn’t see the alleged altercation. In his statement he says that:
He was at his work at the Brunswick Central Hotel at about 4.00 to 4.40am on the relevant date when he saw a silver Honda Civic (peculiarly with a black bonnet) registered number 573 GZF (he noted the registered number on his phone) park blocking the car park exit[4]. He saw a male get out of the drivers’ seat and walk down Martin Street. He described the male as Maori or of Pacific Islander appearance, slim build, 5’7” or 5’8”, black short hair, wearing jeans and a shirt. Then the male came walking back towards the car and flicked something into the garden bed, before getting back into the car and driving off. There was at least one male passenger. Upon it being driven off he saw another male running up the road screaming who threw a bottle at the car.
[4] There will be evidence called at the committal that the vehicle is registered to the defendant’s mother.
At around 7.30am he (IMJ) went down to the garden bed and alongside a number of beer bottles he found a screwdriver. He retained possession of it[5].
At around 5.00pm he saw the same car return to the street. He saw the same male who had flicked something into the garden earlier looking through the garden for 4 to 5 minutes. He and his 4 male passengers drove off. He (IMJ) photographed the car.
[5] It was later given to investigating police. DNA testing has not provided any link between the screwdriver and the defendant.
Substantial reasons, why, in the interests of justice
[15] Section 110B(1) of the Justices 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.”
[16] Section 110B of the Act was inserted into the Act in 2010 as a result of the passing of the “Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010”. The amendments restrict the calling and cross-examination of prosecution witnesses from what occurred previously, when the prosecution would have to call each witness to give oral evidence and/or be cross-examined unless a defendant, represented by a lawyer, consented to the witness not being called.
[17] As said in R v K, 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 authorities on the meaning of the phrase must be given considerable weight. In R v K the decision of Hanna v Kearney and another[6] was summarised as follows:
[6][1998] 44 NSW LR 618
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 trials. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance;
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 framework of the prosecution case. 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”;
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 credibility of an important witness. “Substantial reasons” may also be found elsewhere.
In 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. 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. These examples are not meant to be exhaustive.
“Substantial reasons” may be shown where cross-examination may lead to the narrowing of matters in dispute. This is a consideration of particular importance where the prospect exists of a lengthy trial.
[18] Further in R v K reference was made to Director of Public Prosecutions v Losurdo and another[7] which added to the reasons summarised above in Hanna v Kearney by emphasising that each case depended upon its own facts and that there can be no rigid or exhaustive definition as to what constitutes “substantial reasons”.
[7][1998] 44 NSW LR 618
[19] Further, in Quami v Director of Public Prosecutions and another[8] Justice Fullerton added the following relevant principles on the phrase “substantial reasons”:
[8][2008] NSW SC 675
The process is an important part of the proceedings. The refusal of an application may have significant impact upon the ability of the defendant to defend himself. As well, prosecution has a real interest in ensuring only appropriate matters are sent for trial.
Another example of a “substantial reason” may be 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.
The reasons advanced must have substance in the context of the committal proceedings.
Not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding.
This application
The Complainant
[20] The issue, according to the defendant’s counsel, which will decide this matter, is identification. Should the matter get to the stage of a summing up to a jury then the trial judge will be obliged to inform the jury in accordance with the principles in Domican v R[9] “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”[10] ; their attention “should be drawn to any weakness in identification evidence”[11] and in doing so “the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence”[12] Matters such as the nature of the relationship between witness and person identified, the opportunity had by that witness to observe the person subsequently identified, the length of time between the incident and the identification and the nature and circumstances of the first identification will be raised by the trial judge as important matters for the jury to consider when determining the adequacy of the identification evidence.
[9][1992] HCA 13; (1992) 173 CLR 555
[10]At 562
[11]ibid
[12]ibid
[21] At present there is no evidence revealed in the complainant’s statement going to:
The length of time under which the complainant had the offender under his observation;
The lighting in the area in which the complainant had the offender under his observation;
[22] In Pitkin v R[13] Deane, Toohey and McHugh JJ, after commenting that identification through a photograph is likely to be less reliable than direct personal identification, went on to say[14]
“Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a "suspect" who "looks like" the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.”
[13][1995] HCA 30; (1995) ALJR 612; 130 ALR 35
[14]At paragraph 12
[23] In this matter as regards the complainant’s identification evidence, the complainant did not need to assume that the photographs were of likely offenders having been told by the officer that he believed that one of the males participating the incident may be in the photo board and that the process was an attempt to identify that male. He later added again that there may be a male on the photo board who could assist them with their inquiries. This according to the judgment in Pitkin above may have placed a subconscious pressure upon the complainant to pick out a photo of a “suspect” who “looks like” the offender.
[24] As stated in R v K, one must continue to bear in mind the place that committal proceedings hold in our system of criminal justice. Such was recognised by the High Court in Barton v R[15] where their Honours stated that the opportunity to cross-examine Crown witnesses was a legitimate benefit of Committal Proceedings to a Defendant quite apart from the opportunity of discharge by the Magistrate. Also Stephen J said[16]:
“These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused.
An accused also loses the opportunity of gaining relatively precise knowledge of the case against him and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court, in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence. But the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown's evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused.”
[15] [1980] 147 CL 75 per Gibbs ACJ and Mason J at 99-101 and Stephen J at 194-5
[16] At p 105 - 106
[25] In this matter the complainant, in his own words, in paragraph 5 of his statement, said he was drunk but he knew what was going on and what he was doing. It was around 3.30am and he’d been out drinking since early in the evening when he attended a 21st birthday party at the Brother’s Leagues Club. When I consider his state of intoxication together with the statements the police officer made to him immediately prior to him being shown the photo board together with his statements upon looking at the photo board such as “He looks familiar...number 8” and, “His face, just the way he looks, he looks like the guy from Sunday morning” and, “I believe he is the guy who stabbed me” and, “I’m pretty happy with that”, I am of the view that there are substantial reasons, why , in the interests of justice cross-examination should be allowed, so that the defendant can test the firmness of the identification against the drunken state of the complainant and against the potential for prejudice caused by the police statements to him immediately prior to the process and so that the defendant can be placed firmly in the knowledge of the evidence of the time under which the complainant had the offender under his observation and the lighting of the relevant area and the effect upon him of his state of intoxication at the time of the incident and of the police statements to him immediately before being shown the photo board ( all matters of which a trial judge will have to remark upon in the summing up).
[26] As stated by Deputy Chief Magistrate Hine in R v Balcklidge[17] “It must be accepted, from the decisions in Losurdo, Abdel-Hady v Magistrate Freund and RvW if a Basha inquiry application was bound to succeed in the Distrtict Court, that it is preferable to deal with cross-examination of witnesses in the Magistrates Court. In such a case an order should be made which would obviate the need for a Basha[18] inquiry in the District Court.”
[17][Unreported] 11 March 201 at paragraph [76]1
[18](1989) 39 A Crim R 337
[27] In this matter for the reasons expressed above and later, I am of the view that a Basha inquiry would succeed in the District Court and that this court should not in the words of Dearden DCJ in R v W[19] “duck shove” its responsibility to conduct the committal proceedings.
[19][2009] QDC 40
[28] I am also of the view that there are substantial reasons, why, in the interests of justice that the cross-examination should be allowed as if the complainant is no more positive in his identification of the defendant as being the offender then (subject to a consideration of the other “circumstantial” evidence in the matter) it may well give rise to a no bill application or the entry of a nolle prosequi.
The witness IMJ
[29] As stated before he didn’t see the incident and he doesn’t purport to identify the defendant. His worth to the crown case is that he says he saw a vehicle, which, the crown says it can prove had a connection to the defendant, in the area at around the time of the assault and that the driver of this vehicle threw something into the garden which the crown would ask the jury to infer was the screw driver used by the offender in the incident. Accordingly it is really the identification of the vehicle and its registration number on the first visit to IMJ’s area which is of importance (as the second coming of the vehicle was photographed by IMJ).
[30] The defendant’s counsel argues that as IMJ’s statement regarding the first alleged sighting of the vehicle, doesn’t indicate the distance from which he observed the vehicle nor how well illuminated the area was nor was there anything in the statement as to the times taken by the driver of that vehicle to do the things stated that there are substantial reasons why, in the interests of justice that cross examination of IMJ should be allowed. He added to his arguments that one could expect that there would be a lot of people in that area at that time of the morning and that IMJ, being the General Manager of the Brunswick Hotel, could comment upon that. He also adds that IMJ describes the driver of the vehicle on the first occasion as being a Maori or of Pacific Islander appearance whereas the defendant is clearly of Asian appearance.
[31] The crown argues concerning the evidence of IMJ in respect of the distance from the car that paragraph 3 of his statement sets out that he was in the “lobby or the courtyard of the complex” and the car was seen by him coming into the carpark underneath the building before coming back out and parking on the exit of the carpark leading out onto Martin Street and therefore the distance should be ascertainable. Whether he was in the lobby or the courtyard could mean a great difference to the distance to the car. There is no evidence as to how big the lobby or the courtyard is. IMJ may under cross-examination be able to clarify precisely where he viewed the car from. Defence counsel having a view of the area won’t clarify that evidence.
[32] The crown also argues that lighting doesn’t matter as he doesn’t purport to identify the defendant (only that he views the number plate and records it). The identification of this vehicle is quite an important cog in the crown case against the defendant. I’m of the view that directions similar to those which would have been required had IMJ identified the defendant, would be required here concerning the identification of the vehicle. If the crown’s contention is that it was the defendant who threw the object into the garden and that the object was the offender’s screwdriver used in the assault then as IMJ described the person as being of Maori or Pacific islander appearance then I can conceive the defence arguing to a jury that the description of the person being of Maori or Pacific Islander appearance was correct and therefore a jury wouldn’t be satisfied that it was the defendant. The defendant is entitled to know before trial as to what IMJ’s evidence will be on these issues. These are substantial reasons, why in the interest of justice that the cross-examination should be allowed.
[33] Had these issues been addressed in the written statements or in addendum statements of the complainant and IMJ then there would have been no need to make the orders I do below.
ORDERS
[34] The Application is granted.
[35] I direct pursuant to the provisions of Ss 83A(5AA) of the Act that I require the prosecution to call CLB to be made available for cross-examination on his written statement on the following issues:
The length of time under which the complainant had the offender under his observation;
The lighting in the area in which the complainant had the offender under his observation;
His state of intoxication at the time of the incident;
His state of intoxication at the time of the viewing of the photo board;
The effect upon him of the statements made to him by police immediately before he was shown the photo board;
What was meant by him in the statements he made upon viewing the photo board.
[36] I direct pursuant to the provisions of Ss 83A(5AA) of the Act that I require the prosecution to call IMJ to be made available for cross-examination on his written statement on the following issues:
The distance from which he observed the vehicle on his first sighting of it;
The lighting in the area and on the vehicle when he first sighted it;
The times under which he had the driver of that vehicle under his observation;
The time between flicking something into the garden and getting back into the vehicle;
The number of people in the area at the time;
The physical attributes of the driver of the vehicle which lead him to describe the male as Maori or of Pacific Islander appearance;
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