Police v ED - [2011] QMC 3

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…

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 ED

Details

AGLC: Police v Ed [2011] QMC 3
Case: [2011] QMC 3
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case involved a committal proceeding, where the applicant, a police officer, sought to cross-examine two witnesses. The applicant alleged that the witnesses could provide crucial identification evidence against the defendant, who was charged with various criminal offences. The defendant, represented by counsel, opposed the application, arguing that there were no substantial reasons to justify the calling of these witnesses. The court had to determine whether the applicant had demonstrated substantial reasons to call the witnesses and whether it was in the interests of justice for them to be cross-examined.

The court considered the onus of proof on the applicant to establish substantial reasons to justify calling the witnesses. The applicant argued that the witnesses could provide identification evidence that would be pivotal to the case against the defendant. The court evaluated the communication from the defence, which outlined reasons for opposing the application. The applicant had to show that the witnesses' evidence was necessary and that it would significantly impact the case. The court also assessed whether it was in the interests of justice to allow the cross-examination, considering the potential for prejudice against the defendant.

After reviewing the submissions and the evidence presented, the court found that the applicant had demonstrated substantial reasons to call the witnesses. The court concluded that the witnesses' identification evidence was crucial and that its exclusion could prejudice the fairness of the trial. The court further determined that it was in the interests of justice to permit the cross-examination of these witnesses. Consequently, the court granted the application, allowing the applicant to call the witnesses for cross-examination in the trial.

Orders

Orders of the court

The application is 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.

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