Police v K
[2011] QMC 2
•18 March 2011
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 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 justifying the attendance of the makers of the written statements clearly falls upon the defendant.[1]
A Threshold Question – reasons to justify the calling
[1] See Sim v Magistrate Corbett [2008] NSWSC 665 per Whealy J and Hanna v Kearney [1998] NSWSC 227 per Stoddert J and Quami v DPP and Anor [2008] NSWSC 675 per Fullerton J
[2] And here the Act gives examples of general issues as “identification evidence, expert opinion evidence”
Before embarking on an analysis of the meaning of the phrase “substantial reasons, why in the interests of justice” there is a threshold question to be answered. That is: “Has the defendant complied with the prerequisites to making such applications?” Section 110B(3) provides:
“An application for a direction under section 83A(5AA) may be made only if-
(a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following-
(i) the name of the maker of the written statement the subject of the application;
(ii) the general issues relevant to the making of the application;[2]
(iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence;
(iv) a time (the nominated time) for the prosecution to respond to the defendant’s communication; and
(b) the prosecution’s response to the defendant’s communication (the prosecution’s response) has been received, or it has not been received within the nominated time; and
(c) there is filed with the application-
(i) a copy of the defendant’s communication; and
(ii) the prosecution’s response, if it has been received.”(my underlining)
The defendant, by letter dated 28 February 2011[3], advised the prosecution of the names of the witnesses he sought to cross-examine and the general issues about which the defendant wished to cross-examine each of the witnesses. It is necessary to quote directly from the communication as follows:
[3] Exhibit A to the Affidavit of Michael James Bates sworn on 2 March 2011 and filed with the Application
“…This would entail the cross examination of three witnesses to obtain further particulars for reasonably ascertaining the case against our client and to determine the extent to which witness observations are culturally influenced.
The witnesses that we seek to cross examine are as follows:
Witness PC
The cross examination would be in relation to the times he(sic[4]) observed the defendant to be with the complainant and the relationship between the complainant and the defendant. This would include clarification of paragraph 14 of his (sic) statement to the police.
Witness HS
Cross examination would seek to clarify paragraphs 5 and 6 of the statement.
Police Constable Marinov
Cross examination would examine his manner of taking witness statements to look at the issue of reliability of the witness statements to the police. The people involved are from different countries so it is necessary to ascertain the degree to which their statements reflect their observations rather then their best attempt to express themselves in a foreign language.”[4] PC is a female
It could not be said that the communication from the defendant properly advised the prosecution of “the reasons to be relied upon to justify the calling of the maker(s) of the written statement(s)” as is required by Section 110B(3)(a)(ii).
To “obtain further particulars for reasonably ascertaining the case against our client” is too vague to be a reason to be relied upon to justify the calling of a witness. Likewise to “determine the extent to which witness observations are culturally influenced” is also too vague a reason to be relied upon to justify the calling of a witness. As will be seen from a reading of what follows in this judgment, such reasons can include:
1.
a likely discharge of the defendant either at committal or on a successful application for a no true bill or on the entering of a nolle prosequi;
2.
the possibility of the narrowing of issues for trial;
3.
the avoidance of the defendant being taken by surprise in a particular way at trial[5];
[5] But this ought to be identified for it to be considered by the court in the light of the identified aim of the cross-examiner. It might be argued that the statement “to obtain further particulars for reasonably ascertaining the case against our client” is a sufficient identification of the reason to avoid being taken by surprise at trial but in my view the evidence ought to be identified and the aim of the cross-examiner in respect of that piece of evidence ought to be identified for there to be a sufficient particularisation of the reason.
4.
the substantial undermining of the credit of a significant witness;
5.
the raising of evidence which may give rise to the later exercise of discretion to not admit certain evidence in the trial.
The above list cannot be exhaustive but does provide examples of the level of “reasons” which need to be endorsed upon the face of the defendant’s communication. Such “reasons” are not to be a template upon which the prosecution can rely upon to seek addendum statements, but the prosecution should receive sufficient particulars of the reasons that are to be argued on the application in order to be able to consider firstly whether or not to agree to the witness being present to be cross-examined pursuant to Section 110A(5) and secondly if no such agreement is made, to fairly meet the argument on the Application.
In my view the defendant failed to advise the prosecution of the reasons to be relied on to justify the calling of the makers of the written statements. As such reasons need to be endorsed as a prerequisite to the making of an application, the application must fail. I considered adjourning the matter to enable the defect to be cured but upon a consideration of the argued reasons I am not of the view that there are substantial reasons, why in the interest of justice, that the witnesses should attend to give oral evidence or be cross-examined. Hence an adjournment would be fruitless. My reasons follow which commence with an examination of the phrase “substantial reasons why, in the interests of justice”.
“Substantial reasons, why, in the interests of justice” - Examined
These sections in the Act were inserted 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.
The Attorney-General in his second reading speech for the Bill on 13 April of 2010[6] said:-
“The amendments restrict the calling and cross-examination of Prosecution witnesses unless the Prosecution consents or the Magistrate is satisfied there are substantial reasons in the interests of justice why such witnesses should be called …
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 …”[6] See Hansard page 1255
Accordingly the Court must take guidance from New South Wales authorities on the meaning of the phrase “…substantial reasons why, in the interests of justice…”
The phrase was considered in Hanna v Kearney and Anor[7] by Studdert J who made useful observations which can be summarised as follows:-
[7] (1998) 44 NSW LR 618 Supreme Court of New South Wales Administrative Law Division Common Law Division of 28 May 1998.
1.
The primary aim of the legislative intention was to limit the time occupied in Committal Proceedings[8]. Committal Proceedings are not to provide the opportunity for a full dress rehearsal for Trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance;
[8] This is similar to the position in Queensland as Mr Moynihan QC in his report to the Government which recommended this change to the legislation said in justifying his view that he was not persuaded that an unrestricted right to call and cross-examine witnesses should be retained “There are undoubtedly many benefits to the accused, to the prosecution and the criminal justice system generally from a well prepared and conducted committal hearing. On the other hand there are undoubted effects and costs to the system from unnecessary, inappropriate and wasteful use of the committal: court costs, delay, excessive ‘churning’ through unproductive court events. There are obvious costs to individuals – witnesses who must be available for cross-examine only to be told at the last minute that they are no longer required and excessive legal costs to the accused.”
2.
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 frame work of the Prosecution case. His Honour said that 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”;
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 establish grounds for a no true bill application or to limit it to situations where such cross-examination is likely to substantially undermine the credit of an important witness. “Substantial reasons” may also be found elsewhere.
4.
On 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. His Honour went on to say that 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. His Honour said that these examples were not meant to be exhaustive.
5.
“Substantial reason” may be shown where cross-examination may lead to the narrowing of matters in dispute. His Honour said that this was a consideration of particular importance where the prospect exists of a lengthy trial.
His Honour’s decision was not appealed.
Prior to His Honour considering that decision there had also been a single Judge decision in Losurdo v Director of Public Prosecutions[9] per Hidden J. Justice Hidden’s judgment was appealed to the Court of Appeal New South Wales where the judgment is Director of Public Prosecutions v Losurdo and Anor (23 September 1998)[10]. In the joint judgment of the Court their Honours found after examining a number of cases on the meaning of the word “substantial” that there was no point in endeavouring to ascertain the meaning of that word by reference to a number of synonyms. Their Honours said it was an ordinary English word which must be given its ordinary meaning in the content in which it appears. They said[11], “We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of Committal Proceedings and the provisions of the Justices Act relating to them”.
[9] 10 March 1998
[10] (1998) 44 NSWLR 618
[11] At page 622
Their Honours agreed with the five points made by Studdert in Hanna v Kearney supra. Their Honours went on in their judgment to say (at page 631):-
“There is nothing to suggest that the various dicta about the purposes of Committal Proceedings to which reference is being made has been overtaken by the legislation. Indeed, what the Attorney-General said in the course of his second reading speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of Committal Proceedings that there would rarely be more than a “paper Committal”. This is born out, not only by his general statements but by some of the examples which he gave in the course of his remarks.”
Their Honours said[12] that each case will depend upon its own facts and circumstances and will need to be considered in the light of them. The question will be whether in a given case substantial reasons have been established. Their Honours said that some help may be obtained from the remarks of Studdert J in Hanna but emphasised that there can be no rigid or exhaustive definition of what constitutes “substantial reasons”. They said it would be undesirable to attempt to give one. Of course 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[13] 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[14]:
“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.”
[12] At page 632
[13] [1980] 147 CL 75 per Gibbs ACJ and Mason J at 99-101 and Stephen J at 194-5
[14] At p 105 - 106
His Honour Studdert J in Hanna supra said that the modern procedure of service upon a Defendant of the statements of the Prosecution witnesses has not in his view diminished the force of Stephen J’s remarks.
In more recent times Whealy J in Sim v Magistrate Corbet and Anor[15] set out a number of the relevant principles enunciated in decisions involving the New South Wales legislation. His Honour’s summary was adopted by Her Honour Fullerton J in Quami v Director of Public Prosecutions and Anor[16]as follows:-
[15] [2006] NSW SC 665 at [20]
[16] [2008] NSWSC 675
“(i) The purpose of the legislation is avoid delays in the criminal process by unnecessary or prolix cross-examination at Committal;
(ii) The onus is on the Defence to satisfy the local Court that an order should be made in directing the attendance of witnesses;
(iii) 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 that are sent for trial;
(iv) In relation to matters falling within S91 of the Criminal Procedure Act 1986, the Defendant must show there are reasons of substance for the Defendant to be allowed to cross-examine a witness or witnesses;
(v) The obligation to point to substantial reasons is not as onerous as the reference to special reasons in S93;[17] nevertheless it raises a barrier which must be surmounted before cross-examination will be permitted;
[17] S93 talks about “special” reasons having to be shown to cross-examine witnesses in certain types of charges such as offences of violence or cases involving prescribed sexual offences
(vi) 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.
(vii) 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.
(viii)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 at Trial.”
Her Honour Fullerton J in Quami further said “Self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a Committal Proceeding”.
The Present Application
The witness PC said in her statement[18] that the defendant and the complainant were quite close, often playing games and watching movies together. She said[19] that on one occasion she heard them together in the complainant’s and her mother’s bedroom (late one afternoon when her mother was at work) with the door closed for one and a half hours. This she found to be culturally inappropriate.
[18] At paragraphs 7 and 8
[19] At paragraphs 9 to 13
The defendant seeks to have the witness PC called to give evidence arguing that she was in Brisbane on a working holiday from her home country of Taiwan. The argument is, as I perceive it, that she purports to give evidence in her statement of a relationship between the defendant and the complainant and of events which include one which she considered to be culturally inappropriate. As a witness whose first language is not English can be misinterpreted, the defendant, so it is argued, should be given the opportunity to clarify her evidence prior to trial and also find out which culture she is referring to when she says that the instance in the bedroom was culturally inappropriate.
There is nothing before me which indicates that Ms PC had any difficulty with the English language. To cross-examine her to find out whether she had any difficulty and if so did it affect her statement would be an exercise in mere speculation. The relationship between the complainant and the defendant is described by her in quite some detail. I would have thought that if she had difficulty with the English language then the detail of the relationship wouldn’t have been described in quite such detail. Further her opinion that she didn’t consider the fact that the defendant spent one and a half hours in a bedroom with the complainant was culturally appropriate was merely an opinion. Even if it is admitted into evidence the jury would be invited to form their own opinion about it in the context of the relationship between the defendant and the complainant.
The defendant has not established any substantial reason, why in the interests of justice the cross-examination on the witness PC should be allowed.
The witness HS was also a resident at the townhouse. He is Korean and is in Australia on a working holiday. HS said in his statement[20] that the complainant and defendant were always together playing Wii or watching movies on laptop. He remembered 2 occasions when they were together in the complainant’s room. He heard the sounds from movies and didn’t think there was anything wrong with it.
[20] At paragraphs 5 to 7
The argument in favour of HS being called to give evidence is that the defendant will need to know where HS observed the defendant and the complainant when they were together. I am of the view that his statement is clear that he saw them together on 2 occasions in the bedroom when they were seemingly watching movies; therefore the other occasions were in places in the townhouse other then the complainant’s bedroom. It doesn’t matter if they were together in the kitchen, the living area or some other room (in which they must have been in a position to be observed by other members of the household.
It is further argued that HS ought to be called because he doesn’t say what he actually observed, if anything, or how he came to the opinion as to the fact that they were in the room together. He said in paragraph 6 he thought that “…they were watching movies on his laptop. I remember hearing the sounds from the movies. I don’t remember exactly each occasions (sic) or how long they were in the room as I didn’t keep notice.” The alleged instance of indecent dealing in the bedroom happened late at night and not in circumstances where the defendant was in there playing movies on his laptop for the complainant. The complainant says she was asleep and awoke to find the defendant touching her as earlier described. The complainant’s mother, says in her statement that after being told by the complainant about the bedroom incident that she confronted the defendant, who, admitted he had gone into the bedroom as it had been raining heavily and he wanted to check on the complainant to make sure she was alright and he was padding her on her blanket and when he saw she was okay he left and came downstairs. It therefore seems that the alleged bedroom incident cannot be one of the occasions spoken of by HS in his statement. Accordingly, more particulars of what he saw or heard as set out in paragraph 6, whilst relevant and admissible on the issue of the relationship between the complainant and defendant, will not be of any significance in the issues at trial, which seem to be the questions as to whether he touched the complainant child either as alleged in the bedroom (charge 2) or as alleged on the couch downstairs (charge 1).
This consideration is not unlike that in Battur v DPP and Anor[21] where Cooper AJ considered a decision of a Magistrate not allowing cross-examination of 4 witnesses to a stabbing. The 4 witnesses were walking down the same street at the time of the incident. Basically they each saw 2 men standing toe to toe. One had a knife. Some looked away. Two of the four only had a brief glimpse of what occurred prior to the stabbing. Another saw them struggling with the victim looking like he was trying to push the other away. Another saw a heated discussion, but as they were standing close together he couldn’t see what they were doing. Shortly after he saw blood. The defence wished to raise issues of provocation and self defence so they wished to cross-examine the 4 witnesses as to the quality of their observations. The magistrate found that their statements indicated that they did not really see anything of significance on the issues of self defence or provocation and as the basis of the application was really that the defendant was going to try to get them to say more then they really did say, he was not entitled to do this. There was no contest that it was the defendant who wielded the knife, he had admitted as much in his record of interview (including the fact that after he had been assaulted earlier in the evening by the victim he had gone home and obtained the knife). The other 5 men from the group which included the defendant and the victim and who had been with them both for the duration of the night were allowed to be called to be cross-examined. His Honour agreed with the Magistrate’s decision to not allow the cross-examination.
[21][2002] NSW SC 1237; (2002) 136 A Crim R 533
As in this case the witness HS didn’t see anything of any significance on the issues to be decided at trial I am not persuaded that there are substantial reasons, why, in the interests of justice, the cross-examination of the witness HS should be allowed.
The witness Senior Constable MARINOV was the officer who took the statement of the witness HS.
It is argued that in neither his statement nor in the statement of HS is it indicated that an interpreter was used to assist in the taking of the statement of HS and that until MARINOV clarifies his procedure for taking the statement of HS the “defence cannot know the case to meet as there could be serious problems with the HS statement” and “this would compromise the ability of the defendant to receive a fair trial”.
I don’t agree with this submission. As has been said earlier the evidence of HS isn’t on anything of significance on the issues of substance to be determined at trial. I am therefore not satisfied that if MARINOV is not cross-examined at committal the defendant’s ability to receive a fair trail would be compromised.
It is also argued that MARINOV should be cross-examined as the other police officer involved in the investigation, Constable BARAGAN, has not given a written statement (and so can’t be the subject of a similar application to this). BARAGAN took the statement from the witness PC (and the Section 93A statement from the complainant). The defendant argues that MARINOV should also be called to say whether BARAGAN used an interpreter to assist in the taking of the statement from PC.
I also don’t agree with this submission. As has been said earlier, it is mere speculation that PC needed an interpreter to provide her statement as there is nothing before me indicating that she had any difficulty with the English language. The relationship described by her between the complainant and the defendant was described in quite some detail.
I am not satisfied that the defendant will be surprised to his detriment at trial by any evidence given by either HS or PC. Obviously the investigating police would have questioned both as to whether they saw anything untoward happening between the defendant and the complainant. This questioning resulted in the statements given about observations and hearings of the complainant and the defendant in the complainant’s bedroom, none of which could have been the time the complainant referred to as being the indecent dealing, and their observations of them together playing games on the laptop, Wii or the defendant’s mobile phone in the downstairs area of the townhouse.
I am therefore not satisfied that there are substantial reasons, why, in the interests of justice, the cross-examination of the witness MARINOV should be allowed.
The application is dismissed.
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