Police v Zapala
[2011] QMC 48
•4 October 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Zapala [2011] QMC 48
PARTIES:
POLICE
(prosecution)
v
ROBIN GERSON ZAPALA
(defendant)
FILE NO/S:
MAG67511/11(2)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to cross examine a witness in a committal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
4 October 2011
DELIVERED AT:
Brisbane
HEARING DATE:
4 October 2011
MAGISTRATE:
Judge Butler SC
ORDER:
The orders of the Court will be:
1. The application to cross-examine is allowed.
2. I direct pursuant to the provisions of s83A(5AA) of the Justices Act 1886 that the prosecution call Jason Cory Caple and. Michael Brian Phillips to be made available for cross-examination as to the their observations of the alleged application of force by the applicant and the fall and injury suffered by the complainant.CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES –– “substantial reasons” – grievous bodily harm
Justices Act 1886, s 83A(5AA), s 110B
COUNSEL:
M Forrest (solicitor) for prosecution
R Hadzalic for defendant
SOLICITORS:
Director of Public Prosecutions (Queensland) for prosecution
Kerry Smith Douglas Lawyers for defendant
This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that prosecution witnesses be required to attend to be cross-examined upon committal proceedings.
The applicant, Robin Gerson Zapala is charged with one count of Grievous Bodily Harm.
The applicant seeks to cross-examine two prosecution witnesses who give eyewitness accounts of the alleged assault.
Legal issues
The law for the conduct of committal proceedings in Queensland changed in 2010 upon the passage of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
Prior to that the defence had a general right to cross-examine all prosecution witnesses at committal.
The amendments now forbid a magistrate to require a witness to appear and to submit to cross-examination unless a direction is made under s 83A(5AA). Such a direction must not be made unless the magistrate:
“is satisfied there are substantial reasons why, in the interests of justice, the maker [of a written statement] should attend.”[1]
[1] S 110B(1) Justice Act 1886 and s14A(1) Acts Interpretation Act 1954
The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purposes of the legislation.
The legislative scheme seeks to limit the receipt of evidence in committal hearings to written statements and real exhibits unless a suitable basis is shown. Oral examination is not available on request, and may only be ordered where “substantial reasons” are demonstrated. Accordingly, the mere loss of an opportunity to cross-examine without more could not amount to a ‘substantial reason’.
When interpreting legislation extrinsic material may be considered in order to remove ambiguity or confirm an interpretation.[2]
[2] S 14B Acts Interpretation Act 1954
The Attorney-General in the second reading speech for the Bill, delivered on 13 April 2010, said:
“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…” [3]
[3] Hansard p1255
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 also refer to the New South Wales test and the cases on it in the following passage:
“Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.
The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1988 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1988 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactory. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision.
The relevant principles applying in New South Wales to the operation of section 91 of the Criminal Procedure Act 1988 (NSW) and the meaning of “substantial reasons, in the interests of justice”, were summarised in Sim v Magistrate Corbett & Anor by Whealy J as follows:
“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 s91 of the Criminal Procedure 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.”
It follows that in interpreting the term “substantial reasons” considerable assistance may be obtained by reference to the New South Wales authorities. The meaning of that term was considered by the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and another[4] where the Court indicated its agreement with the following observations by Studdart J in Hanna v Kearney and another[5]:
“1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2. There can be no rigid or exhaustive definition of what constitutes "substantial reasons" and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and 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.
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 to establish grounds for a no bill application. Equally it would be wrong to limit "substantial reasons" to situations where cross-examination is likely to substantially undermine the credit of an important witness. "Substantial reasons" may well be found elsewhere.
4. On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. 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 relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (supra) at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases.”
[4] [1998] 44 NSWLR 618 at 627
[5] 28 May 1998, NSWSC unreported
It was pointed out by Fullerton J in Qaumi v DPP [2008] NSWSR 675 that “self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding”.
In referring to the New South Wales cases it must be borne in mind that the Queensland legislation only establishes the one test, that of “substantial reasons”, which is a less onerous test than the test of “special reasons” which applies in New South Wales to offences involving violence.
The objective of facilitating a fair trial is a fundamental consideration in determining whether cross-examination should be allowed. The High Court in Burton v The Queen[6] explained the importance of committal proceedings in the protection which the criminal process gives to an accused person.
[6] [1980] 147 CLR 75; see also Grassby v The Queen (1989) 168 CLR 1
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 explained that the restriction on cross-examination is not inconsistent with achieving the principal purposes of a committal proceeding:
“According to the High Court (Grassby v The Queen (1988) 168 CLR 1 and Barton v The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are to:
·ensure the defendant is not put on trial on indictment without sufficient cause;
·allow the defendant to learn the case against him or her; and
·marshal the evidence into deposition (written) form.
Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.”
In determining the extent of any cross-examination, this Court must have regard to the purposes of committal proceedings.
This Court must also be alert to not creating a situation which will necessitate the holding a preliminary examination of witnesses (a Basha inquiry) by the District Court. As observed by Rothman J in Abdel-Hady v Magistrate Freund:
“The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice.”[7]
[7] (2007) 177 A Crim R 517
The history and scope of Basha inquiries was considered by his Honour, Judge Durward in R v B (No.2)[8] where he quoted from the decision of Hunt CJ at CL in R v Sandford[9]:
“I maintain my belief in the obvious value of such a procedure – by whatever name it may be called – provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No.2) (1990) 48 A Crim R 49 at 59 – 60.
The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales[10] (at 219, 233); R v Basha[11] (at 539).”
[8] [2010] QDC 417
[9] (1994) 33 NSWLR 172 at 180 - 181
[10] (1987) 10 NSWLR 215 at 233
[11] (1989) 39 A Crim R 337 at 339
Applicant’s submissions
The applicant seeks to cross-examine two eyewitnesses. It is submitted that their cross-examination will go to identification of the defendant and reliability of the witnesses.
In support of this submission it is contended that there are contradictory accounts from the witnesses as to what they saw. The alleged contradictions highlighted by the applicant are:
§Statements as to how many people were chasing the complainant
§Only one witness claims to have seen the offenders come into contact with the complainant
§There is a difference between the descriptions by the witnesses of what the offender did after the complainant was on the ground.
The applicant seeks to cross-examine each of the witnesses as to the following issues:
• The activities of the witnesses earlier in the evening
• The actual incident witnessed and any assumptions made in their statement
• The lack of identification evidence
Prosecution submissions
The prosecution submits that any deviation between the accounts of the witnesses is not such as to justify cross-examination. It is submitted that substantial reasons have not been shown
The Prosecution case
The two eyewitnesses, Jason Caple and Michael Phillips describe viewing an incident which the prosecution allege was an assault by the applicant resulting in the complainant receiving grievous bodily harm.
The prosecution concede that these two witnesses do not independently identify the applicant as the assailant. Neither was able to identify him from a photo board. For identification the prosecution rely on a confessional statement by the applicant in which he admits having had an argument with the complainant at and outside a nearby residence and thereafter chasing him to the area of the bus stop on Wickham Terrace where Caple and Phillips were seated.
The description by each eyewitness of the assailant as being a large Torres Strait Islander is consistent with the appearance of the applicant and confirms that they viewed the events referred to in the applicant's confessional statement.
Mr Caple said he saw three persons "come racing out of the lane", the first with two other males running after him. One male seemed to be chasing the first person and the other male was trying to hold the second man back.
Mr Phillips describes a big man chasing a smaller one. The big man had a friend chasing after him screaming "C'mon lets go".
Mr Phillips says he saw the big man tackle the smaller man causing him to hit the ground with his head.
Mr Caple describes seeing the first man hit the ground really hard but he didn't see what caused him to fall.
Mr Phillip's statement says:
"The big guy stood over the smaller guy when he was on the ground and grabbed his shoulder and picked him up off the ground, The big guy had his hand pulled back like he was going to punch the smaller guy but he was unconscious.
I said, "He's already gone mate. Piss off."
"The big guy looked at the smaller guy and then dropped him on the ground. He took one step towards me but then took off running back towards where he came from."
In his statement Mr Caple described the same incident thus:
"I saw the black guy reach the white guy on the ground, he picked him up by the scruff of the neck. Michael stood up and said "leave him alone he's had enough, he's unconscious."
Michael stood up and the black guy and the white guy following him took off back the way they had come, from Robert Lane.”
Mr Phillips said the incident occurred in a well lit area about four meters from where he was sitting.
The accounts of witnesses as to the initial chase are, in my view consistent. They each saw a white man being chased by a dark skinned man with a third white man close behind. Both considered the third man to be together with the second but trying to have the second man desist.
The witness accounts of what happened next differ in that one reports seeming what caused the first man to fall and the other witness did not. I will discuss this in more detail below.
The descriptions of what happened when the first man was prone on the ground are not, in my view inconsistent in any substantive particular. One witness says the second man lifted the prone man by the shoulder, while the other witness said by the scruff of the neck. This is not a difference of any moment. One mentions a raised arm, the other doesn't mention that. It is not suggested that gesture is of any significance in the proof of the Crown case. This also is not an inconsistency of any substance.
Both witnesses had consumed alcohol. Mr Caple said he had 3 schooners of VB and a couple of rum and cokes. Mr Phillips said he was fairly intoxicated from probably 8 schooners of VB beer and 9 or 10 rum and coke cans. He also takes Suboxone.
The witnesses have made disclosure in their statements as to the extent of their consumption of alcohol earlier in the evening. Phillips frankly admitted he was fairly intoxicated. There is nothing in the statements of the witnesses which suggests cross-examination in respect of their consumption of alcohol or their activities prior to the incident is called for.
As observed by Studdard J in Hanna v Kearney:
“To require a witness for cross-examination without a definite aim but in hope of eliciting some evidence that might prove useful to the defence would not constitute "substantial reasons".
As discussed above, the prosecution rely on the confessional statement by the applicant to establish his identity as the person who was pursuing the complainant when he was injured near the Wickham Street bus stop. A review of the transcript of the interview confirms that admission by the applicant.
The prosecution also assert that the applicant admitted to assaulting the complainant at Wickham Terrace. The applicant said in the interview:
"RZ: And, mate UI threatened the lad UI fucking chased him up the road
DB: Hmm
RZ: That's where I fucked up
DB: Yep
RZ: UI
DB: Hmm
RZ: But I did not stomp, or anything. I hit him, I told him to get back up."
Later in the interview these questions and answers occurred:
RZ: Fucken chased him, as he was running UI I flicking got him man.
AE: Yep, what I want to clear up.. When you got to the top and you hit
him, what does he, what's happened with him, when you hit him?
RZ: He just UI
AE: Yep
RZ: I seen his face, I shit
AE: when you hit him, yep, what happened? What did he do, what did he physically do?
RZ: He just, mate, how would you say it stunned?"
The questioning continued:
"DB: was he still standing, or did he fall to the ground, or?
RZ: No, he, he sort a on his way down
AE: Did he fall forwards, backwards or sideways?
RZ: UI to the side
AE: to the side?
RZ: Side man, everyone at the bust stop saw it."
A tribunal of fact would be entitled to find that these passages amount to an admission by the applicant that he chased the complainant up to near the Wickham Terrace bus stop and there hit him resulting in his falling to the ground and injuring his face.
It was submitted on behalf of the applicant that the transcript of the interview is equivocal as to what happened at Wickham Terrace. The applicant also spoke of an earlier fight outside a nearby residence where he initially punched the complainant. It is submitted the possibility exists that the reference in the above passage to hitting the complainant may have referred to that earlier incident, not what happened in Wickham Terrace.
There is no doubt that a tribunal of fact would be significantly assisted in interpreting the confessional interview by hearing the account given by Mr Phillips that he saw the applicant tackle the complainant to the ground causing him to hit his head and split it open.
For this reason the evidence of the two eyewitnesses as to the circumstances of the complainant falling and hitting his head is crucial to the prosecution's proof of the element of causing grievous bodily harm.
The exact nature of the application of force by the applicant may have important bearing on the Crown's ability to prove the offence as charged.
The reference by Mr Phillip's to a tackle does not obviously accord with the applicant's admission as to a hit. Furthermore, Caple said he saw the complainant hit the ground really hard but didn't see what caused him to fall. While a momentary glance away may have caused him to miss seeing a hit, it seems less likely he would have missed seeing a man tackling the complainant.
Given the high importance of the evidence of these eyewitnesses to this significant issue in the case, these possible inconsistencies take on more significance.
I am persuaded that substantial reasons are shown for allowing cross-examination of both witnesses as to their observations of the alleged application of force by the applicant and the fall and injury suffered by the complainant.
ORDER
The orders of the Court will be:
1. The application to cross-examine is allowed.
2. I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call Jason Cory Caple and Michael Brian Phillips to be made available for cross-examination as to the their observations of the alleged application of force by the applicant and the fall and injury suffered by the complainant.
Judge Brendan Butler SC
Chief Magistrate
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