Police v HJW - [2011] QMC 19

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 offence

Justices 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…

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 HJW

Details

AGLC: Police v HJW [2011] QMC 19
Case: [2011] QMC 19
Decision Date: 31 August 2011

CaseChat Overview and Summary

The matter before the court was an application by the prosecution in committal proceedings to cross-examine the complainant in a case of a sexual offence. The prosecution sought to question the complainant about her conversations with a police officer, P1, both before and after a specific date, and to challenge the basis of her assertion about the timing of the alleged offence. The court was required to determine whether the prosecution had demonstrated sufficient grounds for the cross-examination under the provisions of the Justices Act 1886.

The court considered the requirements of sections 83A(5AA) and 110B of the Justices Act 1886, focusing on whether there were substantial reasons for the cross-examination. The court examined the relevance and probative value of the proposed questions in assessing the credibility of the complainant's evidence and the reliability of her assertions. The court concluded that the questions had the potential to reveal information that could significantly impact the case's outcome and thus warranted allowing the cross-examination.

The court granted the prosecution's application to cross-examine the complainant, directing that she be made available to answer specific questions about her conversations with the police officer and the basis for her timeline of events. The decision was based on the finding that the proposed questions had substantial reasons and were necessary to adequately test the credibility of the complainant's evidence. The court's ruling enabled the prosecution to pursue these lines of inquiry in the interest of justice.

The final orders of the court included granting the application to cross-examine and directing that the complainant be made available to address the specified issues during the committal proceedings. This decision facilitated the exploration of critical aspects of the complainant's testimony, ensuring a fair and thorough examination of the case.

Orders

Orders of the court

[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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 offence Justices 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.