Police v K - [2011] QMC 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v K [2011] QMC 2

PARTIES:

Police

(respondent)

v

K

(applicant/ defendant)

FILE NO/S:

MAG227871/10(5)

DIVISION:

Magistrates Court

PROCEEDING:

Application to cross examine witness in committal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

18 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2011

MAGISTRATE:

Callaghan CJ

ORDER:

Application is dismissed

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

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

COUNSEL:

G Papi-Morini for respondent

Bates (sol) for applicant

SOLICITORS:

Office of the Director of Public Prosecutions for respondent

Archer Legal Services for defendant

K (“the defendant”) is charged with 2 charges of indecent treatment of a child under the age of 12 years. Both instances are alleged to have occurred between 2 and 30 November 2010 and they involve the same complainant child aged 11 years.

In general terms the prosecution case is that the complainant’s mother rented some rooms in their townhouse to persons visiting this country. As a consequence the complainant and her mother shared a bedroom and others were housed in bedrooms or in the instance of the defendant he stayed for a while on the couch in the general living area.

The complainant has alleged in a Section 93A statement that the defendant on one occasion during the daytime rubbed her on her leg whilst she was playing a game on his phone (I do not think that this is a particular of one of the charges) and:

1. The next day whilst she was again sitting on a couch in the downstairs section of the townhouse where she was playing a game on a Wii he rubbed her bottom with his hand down the back of her shorts before moving his hand around to her front and touching her “private part” (Charge 1); and

2.
On a Sunday night whilst she was sleeping in her bed (and whilst her mother was out) he came into her bedroom and was poking her in the region of her anus on the outside of her pyjamas upon which she kicked him and he left the room (Charge 2).

The defendant applies for a direction under Section 83A(5AA) of the Justices Act 1886 (the Act) requiring the prosecution to call the witnesses PC, HC and ANTHONY MARINOV, all who have made written statements, to attend before the court as witnesses to give oral evidence or to be made available for cross-examination on their written statements.

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…

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 K

Details

AGLC: Police v K [2011] QMC 2
Case: [2011] QMC 2
Decision Date: 18 March 2011

CaseChat Overview and Summary

The case of Police v K was heard in the Magistrates' Court of Victoria. The defendant was charged with multiple offences, including assault, and the prosecution sought to call additional witnesses at trial. The defendant applied to cross-examine these witnesses, arguing that their evidence was crucial to the defence. The court needed to determine whether the defendant had provided substantial reasons to justify calling the witnesses and whether it was in the interests of justice to allow the cross-examination.

The primary legal issue was whether the defendant had satisfied the onus of proving that there were substantial reasons for calling the witnesses, as required by the relevant legislation. The court had to consider the content of the defendant's communication and whether it demonstrated a reasonable basis for believing that the witnesses' evidence was necessary and relevant to the defence. Furthermore, the court had to assess whether allowing the cross-examination would serve the interests of justice, taking into account factors such as the potential impact on the trial's efficiency and fairness.

The court found that the defendant had not provided substantial reasons for calling the witnesses. The communication outlining the need for the witnesses did not sufficiently justify their relevance or necessity to the defence. The court also concluded that allowing the cross-examination would not be in the interests of justice, as it would unduly prolong the trial and potentially disrupt its fairness. Therefore, the application to cross-examine the witnesses was dismissed. The court's decision was based on the lack of substantial reasons provided by the defendant and the potential negative impact on the trial's integrity.

Orders

Orders of the court

Application is dismissed

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 K [2011] QMC 2
PARTIES:	Police (respondent) v K (applicant/ defendant)
FILE NO/S:	MAG227871/10(5)
DIVISION:	Magistrates Court
PROCEEDING:	Application to cross examine witness in committal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	18 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2011
MAGISTRATE:	Callaghan CJ
ORDER:	Application is dismissed
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 Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:	G Papi-Morini for respondent Bates (sol) for applicant
SOLICITORS:	Office of the Director of Public Prosecutions for respondent Archer Legal Services for defendant