Police v KA
[2011] QMC 39
•16 September 2011
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 recollection is feeling her underwear around her knees and his erect penis inside her vagina pushing in and out. This is the second count of rape. She said that she struggled to get away from him, kicking backwards with her left leg hitting him in the shin saying “stop it get out of me” but he continued to, in her words, rape her. She immediately left the room, went to the toilet and came back into the room and observed the defendant still to be naked and told him to get out of the house. When the defendant was slow in leaving the house she went to BLC’s door, knocked a couple of times and ultimately told her that the defendant had raped her and wouldn’t leave. The defendant did leave shortly thereafter at about 5.30am and BLC telephoned the police to make the complaint at 6.23am.
This is an application by the defendant pursuant to s 83A(5AA) of the Justice Act 1886 (“the Act”) for a direction that the complainant and the witness BLC be examined and/or cross examined.
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 why, in the interest of justice, the maker of the statement should attend to give oral evidence or be made available for cross examination on a written statement is on the defendant[1].
[1]See Police v ED [2011] QMC 3 at paragraph 5 and the cases referred to therein.
The complainant and the witness BLC
The defendant argues that the credibility of the complainant and the question of whether or not the complainant consented to sexual activity with the defendant are the central issues in these charges.
The defendant, in his written submissions argues that both witnesses should give oral evidence and be made available for cross examination because of:-
1. The need for early determination as to credibility;
2. The need for early determination as to reliability;
3. The need to explore collusion as the two witnesses resided together and there are other issues which surround the possibility of collusion.[2]
[2]These were referred to in argument as the witness BLC’s version may have been tainted by her potential to support her friend the complainant who is on prescription medication for a psychological dysfunction.
4. The issues raised on the Crown’s own evidence of intoxication of the witnesses;
5. The issues raised on the Crown’s own evidence as to the complainant’s mental health, being under psychological care prior to the alleged offence;
6. Cross examination of the witnesses at Committal will ensure a fair trial;
7. Cross examination of the witnesses at Committal may conversely avoid a future, costly District Court Trial;
8. The refusal to allow cross examination would have a significant impact on the ability of the defendant to defend himself;
9. The prosecution has a real interest in ensuring only appropriate matters are set for trial and on the prosecution’s own case, concern about the issue of consent and mistake of fact, should be evident and require early exploration so that the defence are not taken by surprise at any potential trial.
Substantial reasons, why, in the interests of justice.
That phrase is referred to above in s 110B(1) of the Act. As has been said previously[3] that section was inserted into the Act in 2010 as a result of the passing of the “Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010” (“the amending Act”). These amendments restrict the calling and cross examination of prosecution witnesses from what occurred previously.
[3]Police v ED [2011] QMC 3 at paragraph 16.
The phrase “substantial reasons, why, in the interests of justice, the maker (of the written statement) should attend to give oral evidence” was specifically placed into Queensland legislation by the Parliament as it had been used for some 20 years in New South Wales and accordingly guidance from New South Wales authority on the meaning of the phrase must be given considerable weight. In Police v K[4] the decision of Hanna v Kearney and Another[5] was summarised as follows:-
[4][2011] QMC 002
[5][1998] NSW SC 227 and [1998] NSWSC 1026 (28 May 1998)
1. The primary aim of the legislative intention was to limit the time occupied in Committal Proceedings[6]. 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;
[6]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.”
There was no appeal from the decision by Studdert J in Hanna v Kearney and Another.
Prior to His Honour considering that decision there had been a single Judge decision in Losurdo v Director of Public Prosecutions[7] by Hidden J which judgment was appealed with the judgment being delivered after the judgment of Studdert J in Hanna v Kearney and Another. The appeal judgment is cited Director of Public Prosecutions v Losurdo and Another[8]. The court examined the meaning of the word “substantial” and found 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 context in which it appears and said[9] “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”.
[7]10 March 1998
[8](1998) 44 NSW LR 618
[9]At page 622
Their Honours did agree with the five points made by Studdert J in Hanna v Kearney and Anor but added[10] “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.”
[10]At page 631
Their Honours emphasised that there can be no rigid or exhaustive definition of what constitutes “substantial reason” and said that one must continue to bear in mind the place that Committal Proceedings hold in our system of criminal justice. This was recognised by the High Court in Barton v R[11] 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. Stephen J also said a little earlier in his judgment[12] -
“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.”
[11][1980] 147 CLR 75 per Gibbs ACJ and Mason J at 99-101 and per Stephen J at 194-5
[12]At page 105-106
In more recent times Whealy J in Sim v Magistrate Corbett and Another[13] set out the relevant principles as follows:-
[13][2006] NSW SC 665
“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 CriminalProcedure 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.”
His Honour’s summary was adopted by Her Fullerton J in Quami v Director of Public Prosecutions and Another[14] to which Her Honour added a further point as follows:-
“Self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a Committal Proceeding.”
This Application
Early determination as to credibility and reliability
[14] [2008] NSW SC 675
The defendant argues that as these charges are so serious and because they are sexual in nature the issues of credibility and reliability have to be substantial reasons why, in the interests of justice the witnesses should be cross-examined. I do not agree with this statement. As was stated in Hanna v Kearney and Another the objective of the cross-examiner needs to be identified and considered within 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.”[15] No such aim has been identified.
[15] Hanna v Kearney and anor [1998] NSWC 1026 (28 May 1998) at p8
The defendant also argues that as the assessment of credibility and reliability has relevance for a Magistrate in determining whether evidence deduced in committal proceedings is sufficient to place an accused person on trial before a jury[16] then this by itself is a substantial reason why, in the interests of justice the witnesses should be called to give evidence and be cross-examined. I do not agree with this for the same reasons stated in the paragraph immediately above.
[16] See Purcell and Vernados (No. 2) (1997) 1 Qd R 317 at 322
It was argued orally that the credibility and reliability of the witnesses needs to be tested as the complainant’s allegations are different to the defendant’s version given to the police in his record of interview. The defendant had said that the sexual relations were consensual. It is true that this is different to the complainant’s version. The fact that a complainant’s version is different to a defendant’s version is not of itself a substantial reason to allow cross-examination of a complainant even where serious sexual charges are brought as to do so would offend the clear guidance from Hanna v Kearney and anor.
In Director of Public Prosecutions v Losurdo[17] the NSW Court of Appeal in coming to its decision as to what constitutes “substantial reasons” quoted a portion of the Second Reading speech of the Bill by the NSW Attorney – General where he said “Another situation where ‘substantial reasons’ may be held to apply arise where it appears that cross-examination is likely to substantially undermine the credit of a significant witness.” In my view the same consideration applies in this state. The defendant has not established that such cross-examination of either of these witnesses is likely to substantially undermine their evidence.
[17] (1998) 44 NSWLR 618 at p 626
Potential collusion
It was argued that there are substantial reasons to require the cross-examination of both the complainant and the witness BLC as there was an opportunity for there to be collusion between the two and that BLC’s version is tainted by her potential to support her friend, the complainant, who was on prescription medication for psychological dysfunction.
The witness BLC said when they arrived home from the hotel that she went to bed and to sleep. She said that she was awoken in the morning by the complainant knocking at her door and that when she opened the door the complainant said words to the effect of “I woke up and he was having sex with me while I was asleep and he won’t leave.” She relates some things she recollects the complainant and the defendant saying, with the defendant mainly saying that he wished to talk about it and ultimately she (BLC) saying to him that he had to leave on several occasions. After he left she said that the complainant continued to be upset and told her “I was asleep and woke up and he was having sex with me. I tried to push him off” She called the police on behalf of the complainant about an hour later.
The complainant didn’t disclose the first allegation of rape in what the witness BLC said the complainant disclosed to her. The witness BLC doesn’t allege that the defendant made any admissions to her. In those circumstances there is nothing to support the theory that there was collusion between the complainant and the witness BLC. To say there was the possibility of collusion between the two is mere speculation.
Intoxication
The complainant says she had 3 glasses of wine over a 2 hour period with dinner till 9.00pm. She then consumed 4 schooners of beer before midnight. She says she then consumed a vodka and soda before meeting the defendant. She says she had a gin and tonic when in the company of the defendant. She says that apart from this alcohol she did not consume any medication or drugs (prescription or otherwise). She says that she remembers lying in bed just before the first event “feeling a little tipsy but relatively sober” and she was “not confused in any way nor had any memory loss, loss of balance or body control.” She said she had all of her “faculties and clearly knew the difference between right and wrong.”
She has given a detailed account of what she consumed and of its effect upon her. It is hard to see how cross-examination would assist the defendant in providing a complete picture of the crown case against him on this issue or in attacking her credit. I am not satisfied that there is any substantial reason why in the interests of justice the complainant should attend to be cross-examined on this issue.
Nor am I satisfied that there is any substantial reason why in the interests of justice the witness BLC should attend to be cross-examined on this issue. When she finished drinking at the hotel she says she remembers being more then tipsy but not at the point of slurring her speech or being unsteady on her feet. She doesn’t give any evidence against the defendant of an incriminatory nature that evening and the evidence she gives concerning the conversations the next morning don’t allege any admission of the defendant but really only the complainants disclosure to her of (partially) what the complainant says happened.
Complainant’s mental health
In her first statement, the complainant states that she had being seeing a psychologist for two years commencing July 2009. She relates that she was the victim of a drink spiking incident in Tasmania in April 2008 where she was raped by a group of boys. She states that she didn’t make any complaint to the police about this and has only spoken to her psychologist about it. She states that as a result the psychologist referred her to a medical practitioner, she was diagnosed with depression and as such was prescribed the drug Lovan. She gave further details of this in her addendum statement dated 5 August 2011 which included details of the amount of Lovan she was prescribed and consuming daily, the frequency upon which she saw her psychologist in Tasmania from July 2009 until June 2010 (with the exception of some small amount of time spent overseas) when she moved to Brisbane to study at the University of Queensland. Thereafter she details a change of psychologist until October 2010. Between that date and July 2011 she also remained on 20 milligrams of Lovan per day.
She details in her second statement that after this particular incident she commenced seeing another counsellor. She also says that she attempted suicide in April 2011 after which she was taken to the Royal Brisbane Hospital Psychiatric Ward for about 15 hours before being sent home with a prescription for Temazepan. In July 2011 she details that she increased her daily dosage of Lovan from 20 milligrams to 40 milligrams.
In the Application the defendant advised that he sought to cross-examine the complainant on the allegation of rape in the circumstances of approaching and taking a stranger (the accused) home and allowing him to sleep in the same bed as her whilst the complainant admits to having consumed a quantity of alcohol but not to the state of intoxication in the context of the complainant also revealing being under psychological care for a previous alleged rape situation. That is taken from the “defendant’s communication” sent on 10 June 2011. The Crown obviously has sought to gain further information having the investigating officer obtain the addendum statement dated 5 August 2011. The written submissions by the defendant’s counsel submitted that there were substantial reasons in the interests of justice that both witnesses should give oral evidence and be made available for cross-examination due to, inter alia, “The issues raised on the Crown’s own evidence as to the complainant’s mental health, being under psychological care prior to the alleged offence”.
Defence counsel’s oral argument in support of that simply went to the fact that the defendant needed to find out as much as possible about the alleged earlier rape.
No purpose for finding out about further details of this allegation was stated. Such a “purpose” could not be that the complainant makes false allegations about rape because she did not make any allegation about the earlier alleged rape to any person in authority but merely discussed it with a psychologist. Further there does not seem to be any similar fact issue here on the complainant’s evidence viz; she is not alleging a drink spiking here as she stated with regards to the previous matter.
The argument to have the complainant required for cross-examination on this particular issue seems to be without any definite aim stated but in the hope of eliciting some evidence that might prove useful to a defence. In these circumstances it does not constitute ”substantial reasons, why, in the interests of justice the complainant should be cross-examined”.[18]
[18]Hanna v Kearney and anor [1998] NSWC 1026 (28 May 1998) at p 8.
The fair trial issue
The defendant argues that cross-examination of the witnesses at Committal will ensure a fair trial and the refusal of same would have a significant impact upon the ability of the defendant to defend himself.
In DPP v Losurdo[19] the NSW Court of Appeal in coming to its decision as to what constitutes “substantial reasons” quoted further from the Second Reading speech of the Bill by the NSW Attorney – General where he said “On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case ‘the interests of justice’ require the cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial.” That is certainly one of the matters which is said to be a substantial reason why in the interests of justice a witness should be cross-examined at Committal.
[19](1998) 44 NSWLR 618 at p 626.
Here though the statements from the complainant give a very detailed picture as to her and the defendant’s movements throughout the evening, as to what she had consumed, as to their conversations and actions and interactions with each other, as to her thoughts and as her to her reactions to the actions she alleges against him. If the statements had not been as detailed as they are then the defendant would have a successful argument that the witness should be cross-examined so as not to be taken by surprise at trial.
Likewise the witness BLC gives a detailed account of her movements, what she consumed, her conversations, actions throughout the course of the evening and to the conversations, actions and reactions when she was awoken in the morning. Had she given a less detailed account of these things then the defendant could successfully argue that he would need to cross-examine this witness so as not to be taken by surprise at trial.
In this case as there are very detailed statements from both of the witnesses I cannot perceive how the defendant could possibly be taken by surprise at trial nor has it been pointed out to me by his counsel.
On the facts of this case this is not a substantial reason why either witness should in the interests of justice be called to give evidence or be cross-examined at trial.
Avoidance of trial
It was also argued by the defendant that cross-examination of both of the witnesses at Committal may avoid a future costly District Court Trial saying also that the prosecution has a real interest in ensuing only appropriate matters are sent for trial.
In support of this the defendant argued that the issues of consent and mistake of fact are raised.
On the issue of consent the complainant clearly states that at no stage did she consent.
The issue of the defendant honestly and reasonably believing that he had the complainant’s consent is what I expect will be the main issue in this trial should it proceed. The defendant has raised it in his record of interview by implying that they were consensually making love. The jury will be directed to consider whether or not the defendant’s belief, based on circumstances as he perceived them to be was held on reasonable grounds. As the focus will be on the defendant’s belief rather than that of a theoretical reasonable person it is the information available to the defendant which is of relevance in considering whether his belief was reasonably held.[20]
[20]See R v Mrzljzak [2005] 1 QdR 308 at 321, 329-330.
The defendant’s belief and the reasonableness of it (and whether the Crown has discounted it beyond a reasonable doubt) is clearly a question for a jury rather than a magistrate conducting an examination of witnesses. The jury would have before it the evidence from the complainant which presumably she will give substantially in accordance with her detailed statement and the evidence of the pretext call made by the complainant to the defendant on 23 March 2011. During that call it seems the complainant said to the defendant “You remember having sex?” to which the defendant replied “Yep”. After that the complainant stated “I didn’t consent to that. I was asleep.” and the defendant replied “I know”. The defendant may well argue that that admission was not really an admission but that it was simply said so that he didn’t have an argument with the complainant so that he could properly apologise to her and all things would be smoothed over. He did apologise during the course of the conversation. But all of that is a matter for him. I cannot see how any cross-examination of the complainant on her detailed statements about the issue of consent (or his belief in the fact that consent was given) at Committal could assist the defendant in a material way to prepare for trial. No aim in this regard has been identified.
It was also argued by the defendant’s counsel that if the complainant is found to be a credible witness then it may be that the defendant reconsiders his options.
None of these are substantial reasons why in the interests of justice the complainant or the witness BLC should be called to give evidence or be cross-examined at these Committal proceedings.
The Application is dismissed.
0
2
1