R v David Qin

[2007] NSWDC 321

CITATION:	R v David Qin [2007] NSWDC 321
HEARING DATE(S):	7 December 2007
EX TEMPORE JUDGMENT DATE:	7 December 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Direct that the complainant be required to be subjected to further cross-examination, but not in respect of any matters in respect of which she has already been cross-examined.
CATCHWORDS:	CRIMINAL PROCEDURE - subsequent trial - cross examination of complainant
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995
CASES CITED:	Browne v Dunn (1893) 6 R 67
PARTIES:	Crown David Qin (Accused)
FILE NUMBER(S):	07/11/0576
COUNSEL:	P Aitken, solicitor advocate (Crown) B Murray (Accused)
SOLICITORS:	NSW DPP Hurlstone Legal

JUDGMENT

Any matter which identifies the complainant is not be published.

1 HIS HONOUR: This is an application which arises because of the provisions of s 306I of the Criminal Procedure Act.

2 The accused, Mr Qin, was arraigned and on trial for two days in October this year before Judge Berman and a jury. The complainant gave evidence-in-chief and the barrister who then appeared for Mr Qin did cross-examine her.

3 The cross-examination commenced after the luncheon adjournment. The complainant's evidence appeared to take about an hour and a half, and then the barrister, after getting some instructions, proceeded to cross-examine her and put to her a number of matters, consistent with the defence by the accused, that none of the things that she alleged had happened.

4 The matter was adjourned overnight, and when the proceedings resumed the following morning, the barrister indicated to the Court that there were some problems. It appeared that he and the solicitor, who then represented Mr Qin, had given some advice or made some comments to Mr Qin which, among other things, caused him to lose confidence in them. As his Honour noted, when he asked Mr Qin about these matters, there was nothing he thought was improper about the advice that the barrister had given to him, but what concerns me, on this occasion, is that certain matters apparently were not put to the complainant by the then representatives of Mr Qin, and it is on that basis that Mr Murray, who now represents Mr Qin, makes this application.

5 Under s 306I, the complainant, in a case such as this, is not required to give evidence, because an audio visual recording of her evidence that we have can be played, and she is not compelled to give further evidence.

6 Section 306J provides:

(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant to give further evidence:

(a) to clarify any matters relating to the original evidence of the complainant, or
(b) to canvas information or material that has become available since the original proceedings, or
(c) in the interests of justice.

(2) Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.

(3) The court is to ensure that the complainant is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1).

(4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.

7 This is a case where Mr Murray's application is made and it is in the interests of justice that he be permitted to cross-examine the complainant as to those matters about which he is instructed and which, on the transcript of the previous proceedings, counsel who represented Mr Qin in those proceedings, did not put to the complainant.

8 This is, as I indicated in the course of argument, a very sensitive area. The presumptions created by Sections 306I and 306J of the Criminal Procedure Act are in favour of a complainant not being called to give evidence at all, in a subsequent trial where his or her evidence in the first trial is complete.

9 However, in this case, the situation is unusual, in that the reason for the trial being discontinued was the decision by Judge Berman, that he could not continue the trial, without Mr Qin having the opportunity to be legally represented, and in circumstances where Mr Qin withdrew the instructions of the solicitor and barrister then representing him. The reasons for the withdrawal of those instructions are relevant in these proceedings.

10 Normally, in an application of this sort, I would expect the application for the exercise of the Court's discretion, in this case under s 306J(1)(c), to be made, either by affidavit or to be supported by oral evidence. However, if this arises in the circumstances of a criminal trial, to require the accused person to give evidence and subject himself to cross-examination on that evidence, would destroy certain rights, which are fairly central in our system of criminal justice.

11 Because there is no obligation on an accused person to prove his innocence or, indeed, to prove anything, in order for him to be found not guilty, it has traditionally been the right of an accused person to remain silent. An accused person always has the right to give evidence in his or her defence, but whether or not he or she exercises that right, is a question which arises, ultimately, only when the Crown case is complete. To force an accused person to give evidence, which would give the Crown a significant or, indeed, any forensic advantage, before that point, is something which would be unfortunate.

12 For that reason, I allowed Mr Murray to state, from the Bar table, certain of the instructions he had, which required further cross-examination of the complainant. He outlined two areas. One was the way in which the accused says that the practice of Chinese massage normally operates, particularly in relation to the legs, and Mr Murray's instructions are that the way that the accused person, who is by profession a masseur, would have massaged a client's legs is inconsistent with the complainant's evidence, and in order to test that evidence completely, certain matters would have to be put to her, consistent with the rules in Browne v Dunn and other evidentiary rules.

13 The second matter, which Mr Murray raised, was that on the accused's case, a friend or flatmate, or possibly both, of the complainant, subsequently went back to the accused's premises and demanded a refund of money, threatening certain things to the accused, if that money was not refunded. The complainant may or may not know about those things. She could only be asked to give evidence about matters of which she was aware, or which she had, in fact, seen or heard, but even so, it would be relevant to the accused's defence, to put those matters to her.

14 After considering all those matters, I do consider that it is in the interests of justice that the complainant be required to be subjected to further cross-examination in respect of those matters, but not in respect of any matters in respect of which she has already been cross-examined.

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