Police v HJW
[2011] QMC 19
•31 August 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v HJW [2011] QMC 19
PARTIES:
POLICE
(respondent/ prosecution)
v
HJW
(applicant/ defendant)
FILE NO/S:
MAG64087/11(8)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to cross-examine witness in committal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
31 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
26 July 2011
MAGISTRATE:
Judge Butler SC, Chief Magistrate
ORDER:
[1] The application to cross-examine is granted.
[2] I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call the complainant to be made available for cross-examination on the following issues:
1. What, if any, conversations occurred between the complainant and P1 in the period to 9 August 2009 on the topic of sexual approaches by the applicant.
2. What, if any, conversations occurred between the complainant and P1 in the period on and from 9 August 2009 regarding the applicant including any conversations about what was said in court proceedings.
3. On what basis the complainant asserts that the offence charged occurred just after she started karate lessons.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES - Justices Act 1886 ,
s83A(5AA) and s110B – “Substantial reasons” – sexual offenceJustices Act 1886 (Qld), s 83A(5AA)
COUNSEL:
PE Smith for the applicant
RT Marks (Sol) for the respondent.
SOLICITORS:
Gregg Lawyers Pty Ltd for the applicant.
Director of Public Prosecutions (Qld) for the respondent.
This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that a prosecution witness be required to attend to be cross-examined upon committal proceedings.
The applicant is awaiting committal proceedings on a charge that between 1 January 1999 and 1 January 2000 he unlawfully and indecently dealt with the complainant a child under 12 years.
A Police brief of evidence was received by the defence on 6 May 2011, consisting of:
Witness statement of the complainant dated 6 February 2011.
Witness statement of W1
Witness statement of W2
Transcript of Record of Interview between Det Sen Cont. Brad Gould and the complainant dated 6 February 2011
In addition particulars of the alleged incident were provided to the defence by an email from Rebecca Britnell, Crown Prosecutor dated 24 February 2011. The email records what was said by the complainant in a conference on 23 February 2011. The complainant described the subject incident as occurring when she was sleeping on the top bunk in a bedroom at a time after she had just started karate.
The applicant seeks to cross-examine the complainant in respect of the following topics:
“(a) Matters relevant to the stay of proceedings. Why no earlier complaints, recollections of who present, layout of the house, purported identification of the Defendant.
(b) Issues of the particulars. How this incident is distinguished from others. When the matter occurred.
(c) Issues concerning admissibility on the other complainant. Who was present? What occurred? Whether discussions at the time
(d) Issues concerning discussions between the 2 complainants. What was said? Where? What was discussed about the other court case?”
Other proceedings
The applicant refers to a “stay of proceedings”. That is a reference to an application in other proceedings involving the applicant which are currently on foot in the District Court.
On 1 September 2009 the applicant was charged with two counts of indecent treatment of P1, the sister of the complainant. After a Committal Hearing on 29 March 2010 the applicant was committed and later indicted in the District Court on one count of indecent dealing with P1 on a date between 21 July 1998 and 23 July 2000.
That charge is listed for trial in the District Court in the week commencing 26 September 2011. A pre-trial hearing is scheduled for 22 September 2011. According to the respondent’s outline the pre-trial hearing is scheduled for the purpose of:
“… legal argument in regard to an application by the applicant for a stay of proceedings, a determination in relation to sufficiency of particulars, cross-admissibility of P1’s evidence with the complainant’s evidence, should they be joined, and consequently severance of the indictment if the Crown does in fact join both complainant’s on the once indictment”.
The respondent advised the applicant on 10 February 2011 that the Crown may seek to join both matters and raised the “potential prospect” that the sisters will be witnesses for each others matters. It appears that as yet decisions on theses issues have not been made.
In the circumstances it is appropriate that in considering if and to what extent the complainant be cross-examined, I should assume that there is likely to be a stay of proceedings application in respect to the charge involving the complainant on similar grounds to the application currently before the District Court. I should also assume that P1 is likely to be a witness for the Crown in any trial of the charge relating to the complainant.
Cross-examination on issues relevant to the other proceedings
The applicant’s outline submits:
“This is a case where other proceedings in the District Court have been adjourned pending the hearing of this application. The evidence in this committal will be central in the determination of pre-trial issues regarding that matter.”
While that statement may be correct, care must be taken to determine what relevance it has to my task. This is an application to cross-examination the maker of a written statement to be tendered under s 110A(3) of the Act[1]. That section applies only in respect of proceedings with a view to determining whether a defendant should be committed for trial or sentence.[2] There is no provision which empowers the Magistrates Court to conduct an examination for the purposes of proceedings currently before the District Court. The only charge upon which the applicant currently stands in danger of being committed for trial or sentence is the charge relating to the complainant. Cross-examination may only be ordered for the purpose of committal proceedings on that charge.
[1] S 83A(5AA), Justices Act 1886
[2] S 110A(3), Justices Act 1886
The applicant’s written outline advances two topics which require consideration in light of these comments.
The first topic refers to “matters relevant to the stay of proceedings”. I propose to treat this as a reference to a potential application to stay proceedings in the District Court should the present charge concerning the complainant be committed for trial.
A further topic refers to “issues concerning admissibility on the other complainant” (sic). This is presumably a reference to the other complaint. For the reasons I have given, this Court has no power to permit cross-examination of a witness for the purpose of other proceedings in the different court.
Legal issues
The law for the conduct of committal proceedings in Queensland changed in 2010 upon the passage of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
Prior to that time the defence had a general right to cross-examine all prosecution witnesses at committal.
The amendments now forbid a magistrate to require a witness to appear and to submit to cross-examination unless a direction is made under s 83A(5AA) of the Act. Such a direction must not be made unless the magistrate:
“is satisfied there are substantial reasons why, in the interests of justice, the maker [of a written statement] should attend.”[3]
[3] S 110B(1) Justice Act 1886 and s 14A(1) Acts Interpretation Act 1954
The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purposes of the legislation.
The legislative scheme seeks to limit the receipt of evidence in committal hearings to written statements and real exhibits unless a suitable basis in shown. Oral examination is not available on request, and may only be ordered where “substantial reasons” are demonstrated. Accordingly, the mere loss of an opportunity to cross-examine without more could not amount to a ‘substantial reason’.
When interpreting legislation extrinsic material may be considered in order to remove ambiguity or confirm an interpretation.[4]
[4] S 14B Acts Interpretation Act 1954
The Attorney-General in the second reading speech for the Bill, delivered on 13 April 2010, said:
“New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years, considered by the New South Wales Courts and is generally regarded as working satisfactorily…” [5]
[5] Hansard p1255
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 also refer to the New South Wales test and the cases on it in the following passage:
“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.
The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1988 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1988 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactory. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision.
The relevant principles applying in New South Wales 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 by Whealy J as follows:
“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 s 91 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 s 93; 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.”
It follows that in interpreting the term “substantial reasons” considerable assistance may be obtained by reference to the New South Wales authorities. The meaning of that term was considered by the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and another[6] where the Court indicated its agreement with the following observations by Studdart J in Hanna v Kearney and another[7]:
“1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the 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". It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.
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 under s 48E 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. I do but give those instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (supra) at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases. “
[6] [1998] 44 NSWLR 618 at 627
[7] 28 May 1998, NSWSC unreported
In referring to the New South Wales cases it must be borne in mind that the Queensland legislation only establishes the one test, that of “substantial reasons”, which is a less onerous test than the test of “special reasons” which applies in New South Wales to offences involving violence.
The objective of facilitating a fair trial is a fundamental consideration in determining whether cross-examination should be allowed. The High Court in Burton v The Queen[8] explained the importance of committal proceedings in the protection which the criminal process gives to an accused person.
[8] [1980] 147 CLR 75; see also Grassby v The Queen (1989) 168 CLR 1
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 explained that the restriction on cross-examination is not inconsistent with achieving the principal purposes of a committal proceeding:
“According to the High Court (Grassby v The Queen (1988) 168 CLR 1 and Barton v The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are 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
·marshal the evidence into deposition (written) form.
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.”
In determining the extent of any cross-examination, this Court must have regard to the purposes of committal proceedings.
This Court must also be alert to not creating a situation which will necessitate the holding a preliminary examination of witnesses (a Basha inquiry) by the District Court. As observed by Rothman J in Abdel-Hady v Magistrate Freund:
“The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice.”[9]
[9](2007) 177 A Crim R 517
The history and scope of Basha inquiries was considered by his Honour, Judge Durward in R v B (No.2)[10] where he quoted from the decision of Hunt CJ at CL in R v Sandford[11]:
“I maintain my belief in the obvious value of such a procedure – by whatever name it may be called – provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No.2) (1990) 48 A Crim R 49 at 59 – 60.
The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales[12] (at 219, 233); R v Basha[13] (at 539).”
[10][2010] QDC 417
[11](1994) 33 NSWLR 172 at 180 - 181
[12](1987) 10 NSWLR 215 at 233
[13](1989) 39 A Crim R 337 at 339
Discussion
As stated above, the applicant nominated four topics on which he wishes to cross-examine the complainant.
Those topics may be disaggregated into further sub-topics. I will address each in turn having regard to the submissions by the applicant and respondent as I do so.
In considering these topics it is appropriate to note that the complainant was born in 1991 and is now 20 years of age. P1, her younger sister, is about 2 ½ years younger. The complaint relate to an offence alleged to have occurred at least a decade ago. The evidence is that the complaint first came to the attention of the girl’s parents in August 2009. A complaint was then made to the police by P1. At that time the complainant told her parents she had been abused but declined to speak to the police. It was only on 10 February 2011 that the defence were advised by the prosecution that the complainant would provide a statement in the matter. On 6 February 2011 the complainant gave a taped interview which later formed the basis of a signed statement.
The applicant is now faced with the difficulty of preparing a defence in respect of an alleged offence over a decade old which has only being brought to his attention recently. He submits he has lost the opportunity to be able to mount an effective defence.
Cross-examination on reason for late complaint
The applicant submits that cross-examination is necessary on why an earlier complaint was not made.
The complainant says in her statement and recorded interview that she never told anyone until telling her best friend in grade 10 when she was 17. She only told her boyfriend quite recently.
The complainant explained that in August 2009 when her parents learnt of the allegations they wanted her to get something done about it straight away. She explained “I just couldn’t really handle it at the time”. [14]
[14] Interview, 6 February 2011, p14
Experience suggests there is nothing surprising about a young person electing not to speak about an offence of this kind. The complainant’s explanation that as recently as 2009 she could not handle formally complaining about the matter is consistent with that.
The complainant’s account adequately discloses why she says she failed to complain earlier and details when she first did advise another. That evidence sufficiently alerts the applicant to the Crown case in this regard.
The applicant has not established substantial reasons to cross-examine on this topic.
Discussions with sister
The applicant is on stronger ground with the submission that cross-examination is necessary on discussion between the complainant and her sister about the alleged offences.
The complainant was asked in her interview if she and P1 ever discussed what happened and she replied “No not really”.[15] In her statement it is put this way: “[P1] and I have never really discussed it”.
[15] Interview, 6 February 2011, p11
Neither statement is conclusive. They invite the question: what does “not really” mean?
It would seem apparent that reference in P1’s diary to the complainant having been abused either came from something P1 saw or from what she had been told by the complainant. P1 said in her s 93A interview that she was told by the complainant a couple of years ago.[16]
[16] Interview, 11 August 2009, pp13 and 18
In the complainant’s statement she speaks about her sister telling her that she was asked in Court about the applicant’s son with whom the complainant went out with briefly.[17]
[17] Interview, p14
The possibility of collusion between witnesses is an important consideration in cases of this kind.[18]
[18] See: R v Hoch (1988) 165 CLR 292
In my view substantial reasons are established.
The applicant should be permitted to cross-examine on the following issues:
1. What, if any, conversations occurred between the complainant and P1 in the period to 9 August 2009 on the topic of sexual approaches by the applicant.
2. What, if any, conversations occurred between the complainant and P1 in the period after 9 August 2009 regarding the applicant, including any conversations about what was said in court proceedings.
Recollection of layout of the house
The complainant was asked and gave a basic description of her recollection of the house in her interview[19] and statement[20]. This was enlarged in the record of her conference with the Crown Prosecutor on 23 February 2011 where she described the sleeping arrangements over time.
[19] Interview, pp7-8
[20] Statement, 6 February 2011
In respect of the subject charge, the complainant is clear as to the room she was in and her location in the room.[21]
[21] Interview p4; email 24 February 2011
The applicant submitted in the notice of intention letter dated 17 July 2011 that there was a conflict between the complainant’s reference to an incident when she was in a bunk bed and her sister’s evidence that they slept on mattresses on the floor.
The complainant’s account in her conference with the Crown Prosecutor on 23 February 2011 clarified this matter.[22] She said the sleeping arrangement varied with her sometimes sleeping on a bunk bed in a downstairs bedroom and on other occasions on a mattress on the floor of the rumpus.
[22] Email 24 February 2011
Considering the whole of the complainant’s evidence, it is not inconsistent with other evidence and adequately recounts her memory of the house.
The applicant is sufficiently appraised by this material for the purpose of trial or pre-trial hearing.
Identification of defendant
The complainant was clear in her interview that the man she accused was, the husband of the woman who was her baby sitter. She described how she was aware of him coming down the stairs and then touching her. The complainant was asked how she knew it was him that was coming down the steps. She replied: “Well there was no other older male in the house at the time.”[23]
[23] Interview p 13
It is submitted there was no photographic identification. In circumstances where the defendant is well known to the accuser and is a member of a family group the use of photo identification would not seem to be indicated.
No substantial reason is shown for cross-examination on this topic.
Cross-examination on particularity
The applicant makes the following submission:
“…it is clear that no proper particulars could be given in the first interview and then there is a “vague” particular given with respect to the statement dated 6 May. Then this changes once the karate evidence becomes relevant. Particularisation is crucial in cases of this nature. It is in the interests of justice the defendant be permitted to cross-examine on this issue.”
Particulars are pleadings drafted by the legal representative. What is complained of is lack of sufficient detail in the testimony of the witness such as to allow adequate particulars to be given by the prosecution.
In my view, on a fair reading of the evidence, the complainant consistently identifies a specific occasion in her Police interview, the statement prepared from that interview and the conference with the Crown Prosecutor.
The complainant from the beginning of her interview identified the offence as occurring when she was in the top bunk in the bedroom and everyone was asleep. In her initial interview she placed the event in time is been in the period commencing before she started grade one, when she was about 5 years of age, and ending when she was in grade 3 or 4.
In conference with the Crown Prosecutor on 23 February 2011 she recalled that at the time of the subject incident she had just stated karate. She only did karate for about a year. This additional information is not inconsistent with her earlier account.
While her identification of the incident has been consistent, the ability to place it precisely in time emerged later. No reason has been given for how the complainant relates the karate lesson to this particular night time incident.
I am satisfied there is a substantial reason justifying cross-examination on this issue. The applicant is entitled to explore the reliability of the complainant’s recollection that the incident occurred after she had just stated karate.
Similarity or otherwise of allegations by complainant and P1
The applicant seems to be concerned that the Crown will seek to argue that the complainant’s allegations are relevant and admissible on the charge relating to P1. As discussed above, this Court has no role in relation to that other charge now before the District Court.
The applicant has not identified any specific line of cross-examination to address his concerns on this topic. To establish a substantial reason it is necessary to do more than seek to cross-examine at large in the hope of eliciting something useful.
I will not allow cross-examination on this topic.
Orders
The application to cross-examine is granted.
I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call the complainant to be made available for cross-examination on the following issues:
1.What, if any, conversations occurred between the complainant and P1 in the period to 9 August 2009 on the topic of sexual approaches by the applicant.
2.What, if any, conversations occurred between the complainant and P1 in the period on and from 9 August 2009 regarding the applicant, including any conversations about what was said in court proceedings.
3.On what basis the complainant asserts that the offence charged occurred just after she started karate lessons.
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