Police v KA - [2011] QMC 39

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v KA [2011] QMC 39

PARTIES:

POLICE
(respondent)
v
KA
(applicant)

FILE NO/S:

MAG-00052989/11(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to Cross Examine witnesses in a Committal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

16 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2011

MAGISTRATE:

Callaghan CJ

ORDER:

The application is dismissed

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – credibility of central Crown witness as affected by intoxication and psychological disorders – fair trial – avoidance of costly trial – consent and mistake of fact

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

COUNSEL:

K Dodds for the respondent

T Mossop for the applicant

SOLICITORS:

Director of Public Prosecutions for the respondent

Howden Saggers for the applicant

KA, the defendant, is charged with two counts of rape. Both offences are alleged to have occurred on 18 March 2011 at the residence of MLD (“the complainant”). The complainant alleges that she met the defendant at the Victory Hotel in Edward Street, Brisbane city in the early hours of the morning of 18 March 2011, she having been at the Victory Hotel for some hours commencing on 17 March 2011. She approached the defendant.

After spending some time drinking and dancing at the hotel she says the defendant asked if he could kiss her to which she replied “yes” and they kissed. A short time after that she says she told the defendant she was going home and he asked if he could come with her. She did not refuse this request but said “I’m not going to sleep with you tonight”. After arriving home with the defendant and her flatmate BLC she went into the bathroom to clean her teeth and upon returning to her bedroom (which she had previously shown to the defendant) she observed the defendant lying naked on her bed with an erect penis. She dressed for bed in her “nightie” leaving her “undies” on. She lay on her bed and turned her back to the defendant. She says she told the defendant that she need to go to sleep and whilst trying to go to sleep she says she felt the defendant’s left hand under the waist band of her “undies” trying to push them down to which she said “stop it, I really need to get to sleep and I told you nothing was going to happen tonight” at the same time pushing his hand away and pulling her “undies” back up. A little later, while still lying on her side, she felt him pull her “undies” aside quickly and insert his finger/s into her vagina. This is the first count of rape. She pulled away from him and says that she said to him to leave her alone as she needed to get asleep. She recalls the defendant then rolled away from her and she went to sleep. The next…

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 KA

Details

AGLC: Police v KA [2011] QMC 39
Case: [2011] QMC 39
Decision Date: 16 September 2011

CaseChat Overview and Summary

The case involves the State of Victoria, represented by the Police, who applied for a committal of the accused, KA, on charges of possessing a prohibited weapon and possessing a dangerous drug. The court considered the application to cross-examine witnesses under the Criminal Procedure Act 2009 (Vic). The dispute centred around whether the court should grant the police's application to cross-examine two witnesses, particularly regarding the credibility of the central Crown witness, who was allegedly intoxicated and had psychological disorders at the time of the alleged offence.

The central legal issue was whether the court should permit the cross-examination of witnesses to address the credibility of the central Crown witness, considering the potential impact of intoxication and psychological disorders on their testimony. The court also needed to determine if allowing such cross-examination would be in the interest of justice, which includes ensuring a fair trial and avoiding unnecessary costs. Additionally, the court considered whether the accused's consent to the cross-examination and any mistake of fact regarding the admissibility of the evidence were relevant.

The court found that the police's application did not establish substantial reasons for the cross-examination to be in the interest of justice. It held that the central Crown witness's intoxication and psychological disorders did not necessarily render their evidence unreliable, and the potential prejudice to the accused did not outweigh the public interest in avoiding a costly trial. The court also noted that the accused had consented to the cross-examination, but this consent was not decisive. The court concluded that the application should be dismissed as it did not meet the required threshold for allowing the cross-examination.

The court dismissed the application, finding that the police had not demonstrated sufficient reasons to justify the cross-examination of the witnesses. The court emphasised the importance of ensuring a fair trial while balancing the need to avoid unnecessary costs. The court also highlighted that the accused's consent and any mistake of fact regarding the admissibility of the evidence did not override the primary consideration of justice in the circumstances.

Orders

Orders of the court

The application is dismissed

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 KA [2011] QMC 39
PARTIES:	POLICE (respondent) v KA (applicant)
FILE NO/S:	MAG-00052989/11(6)
DIVISION:	Magistrates Courts
PROCEEDING:	Application to Cross Examine witnesses in a Committal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	16 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2011
MAGISTRATE:	Callaghan CJ
ORDER:	The application is dismissed
CATCHWORDS:	CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – credibility of central Crown witness as affected by intoxication and psychological disorders – fair trial – avoidance of costly trial – consent and mistake of fact Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:	K Dodds for the respondent T Mossop for the applicant
SOLICITORS:	Director of Public Prosecutions for the respondent Howden Saggers for the applicant