Welch v Queensland Police Service
[2012] QMC 5
•2 March 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Welch v Queensland Police Service [2012] QMC 5
PARTIES:
PREM CHI’LAN WELCH
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)
FILE NO/S:
MAG138673/11(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to Cross-examine a Witness in a Committal
ORIGINATING COURT:
Magistrates Court at Cairns
DELIVERED ON:
2 March 2012
DELIVERED AT:
Cairns
HEARING DATE:
22 February 2012
MAGISTRATE:
Pearson S
ORDER:
The prosecution call Joseph John Shawn Rich and Lucas John Williams to attend court and be made available for cross-examination about their observations (including both visual and auditory) of the events that transpired in their room at Shennigans Motel on or about the 13th day of August 2011 which give rise to the criminal charges before the Court including their recall as to which particular offender did what to each of the complainants, any conversation that passed between any of the offenders and the complainants, any conversations that passed between the offenders and any circumstance which might affect the reliability or quality of their ability to recall the said events. 1.
The prosecution call Stuart James Rainbow to attend court and be made available for cross-examination about his interactions with, and observations of, the applicant immediately after the events in the motel room up until the time he was lodged at the police watch house.2.
The prosecution disclose to the applicant any documents or notes which may have been produced by Officers Odmark, Catterin, Pols and Rainbow containing a record of their recollections of the events, or which were used in the production of their statements within 14 days of today.3.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons in the interest of justice
Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:
P Bovey for applicant
T Sutton (constable) for respondent
SOLICITORS:
O’Reilly Stevens Bovey Lawyers for applicant
Respondent on own behalf
The applicant is charged with three offences which allege that on 13 August 2011 at Cairns he: -
1. entered the dwelling of Joseph Rich (at night and in company) with intent to commit an offence therein;
2. unlawfully assaulted Lucas Williams and did him bodily harm whilst in company; and
3. unlawfully wounded Joseph Rich.
Two other men are also charged with these offences: Rhett Anning and Daniel Siepen.
The allegations are as follows: -
On the evening of Friday 12 August, the complainants Rich and Williams had been at a wedding and ended up at the Grand Hotel in Cairns. A disagreement occurred at the Hotel between Williams and another male person (not Welch) and this led Rich and Williams to leave the hotel and return to where Rich was to stay for the night. This was a motel room at Shenanigans Motel.
Once in the motel room, Rich fell asleep on the bed. Williams was also on the bed but it is not clear whether or not he fell asleep. The men were disturbed by the sound of banging on the door to the room, which was then forced in. Three men entered the room and each of the complainants was immediately set upon. The lights were off during the events which transpired, and the curtains closed. The room had been dark prior to the opening of the door. After this, some light entered the room.
Rich jumped up from his bed but was struck to the head by what he thought was a bottle. This blow knocked him down and he was then kicked to the face. One of the men was yelling at him to get on the floor and seemed to have either a knife or a shard of glass in his hand. This was swung at Rich who sustained cuts to his neck, ear, and shoulder. Rich was then also kicked to the stomach.
At this time Rich saw Williams had been knocked from the bed and the other two men were hitting him with something to the head. Rich saw the two men bashing Williams while he was on the ground. Williams says he recognised one of the men as the one with whom he had had the earlier disagreement at the Grand Hotel and that this man was repeatedly punching him to the head while the other man hit him to the head with a bottle.
It is alleged that Siepen was the man who attacked Rich and cut him with a knife. Anning and Welch are alleged to have been the two men who assaulted William, Welch being the man armed with a bottle. Anning is said to be the man from the Grand Hotel.
Rich managed to get up from the floor and ran from the room. He ran into a police patrol and he summoned their help. Police Officers Rainbow, Catterin, Pols and Odmark were part of this patrol. They saw Rich who was followed closely by Siepen, who ran from the police and was seen to discard an item which was later recovered. It was a knife.
The officers quickly made their way to the motel room. Odmark arrived at the door to the room first. Behind him were Pols and Catterin, followed again by Rainbow.
Once at the doorway Odmark saw Williams in the ground covering his head with his hands, screaming for help. He saw two men standing over Williams. From his later dealings with these men he could say that it was Welch that he saw using his hands to hold Williams down while Anning was punching Williams to the head area. He called for the two men to stop and then two men then moved quickly toward the doorway. Anning pushed past police and was restrained after a brief but somewhat violent struggle with Odmark. All of these events transpired in about 10 seconds.
Pols had followed Odmark into the room. At that time she saw three persons: one cowering on the ground. In her initial statement she says she saw the other two persons advancing toward herself and Odmark. In an addendum statement she asserts seeing the men standing over the one male on the ground.
Catterin stood behind Odmark and Pols during these events but could see a man on the ground covering his head with his hands. Two other men where present who started to walk toward police once Odmark called to them. This officer concedes that his view was obstructed by the other officers but thought the lights were on at the time of these events.
Rainbow saw nothing of the events inside the room but saw Anning and Welch push past police as they left the room. He was the officer who dealt with Welch from this time on until he was later placed into a police vehicle and driven to the police watch house. Welch is described as being compliant at first but later becoming aggressive and disobedient to police direction while in the company of Rainbow.
The applicant seeks a ruling that six witnesses be made available for cross-examination at committal proceedings, they being: -
(i) Joseph Rich
(ii) Lucas Williams
(iii) Stuart Rainbow
(iv) Andrea Catterin
(v) Karina Pols
(vi) Trent Odmark
The first two witnesses are the two complainants to the charges and an agreement has been reached between the prosecution and defence that they each be called at a committal with the cross-examination to be limited to “their observations (including both visual and auditory) of the events that transpired in their room at Shennigans Motel on or about the 13th day of August 2011 which give rise to the criminal charges before the Court including their recall as to which particular offender did what to each of the complainants, any conversation that passed between any of the offenders and the complainants, any conversations that passed between the offenders and any circumstance which might affect the reliability or quality of their ability to recall the said events”. (Text taken from the draft orders supplied by the applicant and consented to by the prosecution.)
Mr Bovey raised in argument that he may also seek to have these witnesses give evidence in chief in full however retracted this application upon the realisation that this was not adequately covered by the original application. This appears to be an appropriate concession on Mr Bovey’s part and I would have been reluctant to make such an order in any event.
I will make the orders that have been agreed to with regard to these two witnesses as there are clear significant issues that need to be addressed in the interests of justice.
The remaining four witnesses are the police officers who were in attendance at the scene immediately after the events. The applicant seeks to have each witness called to be made available for cross-examination about: -
1. “Their observations, both visual and auditory, of the events taking place in the motel room at Shenanigans on or about the 13th day of August 2011 and relevant to the present proceedings as witnesses by them when they entered, or were in close vicinity to the room, including any actions or comments made by the applicant Welch or others in his presence immediately after the events the subject of the charges which might be admissible against Welch as part of the res gestae;
2. Any circumstances which may affect the quality of reliability of any of the observations in 1. above;
3. Any documents that the witnesses had access to for the purposes of refreshment of memory prior to the production of their written statements.”
The prosecution objects to this course.
With regard all witnesses, the applicant asserts that the primary issue in this case will be “who did what”. It is akin to an “identification” case where a direction would have to be give to the jury about the approach to be taken to the assessment of the evidence on the issue of identification (as per Domican v R (1992) 173 CLR 555). This will require a close scrutiny of the circumstances in which observations were made: lighting, obstacles, quality of vision of the witness, duration of observations, etc. Questioning is sought of all witnesses on this issue.
The prosecution asserts that questioning at committal is not required. The officers have supplied statements that exhaustively canvass these issues. The provision of addendum statements by the police was no concession regarding there being an issue but done out of an abundance of caution. Any police notes, etc sought by the applicant would have been disclosed in accordance with the disclosure obligations imposed upon the prosecution under the Criminal Code.
With regard to Officer Odmark the further reasons argued by the applicant relate to his conversation with Williams at the conclusion of the events inside the room when Williams says about the men that they were the men “Joe and I had a disagreement at the Grand before we came home” (refer to the statement of Williams). It is sought to clarify what was said and the significance is that there is no evidence that Welch was involved in the earlier incident at the Grand Hotel or was even present at the time of these earlier events.
The prosecution respond to this by asserting that the these questions would more appropriately be put to the witness Williams as it is what he said and what he meant by this that may be in issue.
With regard to Officer Catterin the applicant seeks to question him about his assertion that the light was on in the room at the time of the events. This is inconsistent with the evidence of all other witnesses, bears on the question of how well lit the room was and is, therefore, relevant to the potential quality and reliability of the observations of all witnesses.
The prosecution concede the discrepancy but argue that this does not amount to a substantial reason, in the interests of justice, to call this witness to give evidence.
With regard to Officer Pols, the further argument rests on an asserted change in evidence between her original statement and addendum statement regarding the positions and actions of Anning and Welch (as set out in paragraph 12).
The prosecution argue that there is no inconsistency between the statements rather that the addendum statement provides her observations of where the two men were in the room prior to them advancing upon police. Alternatively, it is argued that this is not a substantial reason for this witness to be called to give evidence.
The applicant also seeks to query the contents of any conversations between Welch and police and any observations regarding Welch’s demeanour during his time in police company. This would seem to relate primarily to Officer Rainbow. The applicant’s case has been revealed as involving an assertion that while he was present in the room at the time of the events, he was not involved in the assault, nor did he do anything to aid or abet the actions of the other two men. His actions after the events appear consistent with this and it is sought to elicit evidence that may strengthen the case in favour of Welch.
Again the prosecution oppose this on the basis that anything relevant to Welch would have been included in the police statements.
The applicant is to be determined pursuant to Section 83A(5AA) and Section 110B(9) of the Justices Act 1886 which provide that I must not give such a direction for the calling of a witness to give evidence at a committal hearing unless satisfied there are substantial reasons why, in the interests of justice, the maker of a statement should attend to give oral evidence or be made available for cross-examination on the statement. The applicant bears the onus of satisfying the court on balance as to whether there are such substantial reasons.
These provisions of the act are designed to limit witnesses having to give evidence at committal hearings unless required in the interests of justice for reasons that are reasons of substance: Hanna v Kearney and Anor (2998) 44 NSW LR 618.
There is no exhaustive list of what amount to substantial reasons in the interests of justice however it may include instances where cross-examination is likely to:
(i) Result in the discharge of the defendant or grounds for a no true bill application;
(ii) Substantially undermine the credit of an important witness;
(iii) Enable a proper understanding of the prosecution case and to avoid the defendant being taken by surprise at trial;
(iv) Enable a proper understanding of the basis of an opinion held by a witness
(v) Narrow the matters in dispute especially where the prospect exists of a lengthy trial;
(vi) Elicit evidence which may give rise to a discretion or determination to reject evidence at trial.
These examples are taken from Hanna v Kearney and Anor (as above); Director of Public Prosecutions v Losurdo and Anor unreported 23 September 1998; Quami v Director of Public Prosecutions and Anor [2008] NSWSC 675.
Each case will depend on its own facts and the particular questions raised in it.
Applying these principles to the facts in the present case I find I am not satisfied that the applicant has shown substantial reasons why, in the interests of justice the witnesses Odmark, Catterin or Pols should be called as witnesses at the committal hearing. I accept the arguments of the prosecution in each instance The addendum statements taken from these witnesses clearly contain the best evidence they are able to supply and any additional questioning of them would amount more to “fishing” or relate to issues which cannot be regarded as amounting to substantial reasons why, in the interests of justice, these witnesses should be called. Any additional questioning can be safely left for the trial without any foreseeable prejudice being caused to applicant.
I will, however, made an order regarding the disclosure of any documents or notes which may have been produced by the officers containing a record of their recollections of the events, or which were used in the production of their statements.
However, I am satisfied that there is a need for the witness Rainbow be called to be questioned about his interactions with Welch immediately after the events in the room up until Welch was placed in the police car. It seems likely that there were conversations between Rainbow and Welch which have not been fully canvassed in Rainbow’s statement. These interactions may have a significant bearing on the case against Welch and it would be unduly unfair to place the applicant in the position of first learning the full extent of the evidence at his trial.
Further, I will make a similar order regarding disclosure as it relates to Officer Rainbow.
For the purposes of clarification, the order I have made with regard to the witness Williams is intended to cover questioning about his conversation with Officer Odmark immediately after the events in the motel room regarding the men who had perpetrated the attack and Williams’ prior knowledge of these men.
Orders:
1. The prosecution call Joseph John Shawn Rich and Lucas John Williams to attend court and be made available for cross-examination about their observations (including both visual and auditory) of the events that transpired in their room at Shennigans Motel on or about 13 August 2011 which give rise to the criminal charges before the Court including their recall as to which particular offender did what to each of the complainants, any conversation that passed between any of the offenders and the complainants, any conversations that passed between the offenders and any circumstance which might affect the reliability or quality of their ability to recall the said events.
2. The prosecution call Stuart James Rainbow to attend court and be made available for cross-examination about his interactions with, and observations of, the applicant immediately after the events in the motel room up until the time he was lodged at the police watch house.
3. The prosecution disclose to the applicant any documents or notes which may have been produced by Officers Odmark, Catterin, Pols and Rainbow containing a record of their recollections of the events, or which were used in the production of their statements within 14 days of today.
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