DPP v DSM [2013] QMC 20

MAGISTRATES COURTS OF QUEENSLAND CITATION: DPP v DSM [2013] QMC 20 PARTIES: DPP (prosecution) v DSM (defendant) FILE NO/S: MAG94086/12(4) DIVISION: Magistrates Courts PROCEEDING: Charge – Application to cross-examine witnesses in a committal proceeding ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 1 May 2013 DELIVERED AT: Southport HEARING DATE: 2 April 2013 MAGISTRATE: Magee KT ORDER: Application granted in part CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – Committal proceeding – Application to cross-examine witnesses – Substantial reasons in the interest of justice Justices Act 1886, s 83A(5AA), s 110B Abdel-Hady v Magistrate Freund and anor [2007] 177 A Crim R 517 Anderson v DPP BC 2009 09917 / B v Gould [1993] 67 A Crim R 297 DPP v Losurdo [1988] 44 NSWLR 618 Hanna v Kearney [1998] NSW SC 227 Goldsmith v Newman (1992) 59 SASR 404 Police v CM [2011] QMC 14 Police v BCR [2011] QMC29 Sim v Magistrate Corbett [2006] NSWSC 665 Poliakov v Magistrate Andrew George [2009] NSWSC 1133 PJK v Police [2011] QMC 43 COUNSEL: M R Arace for the prosecution A Dwyer (solicitor) for the defendant -- 1 of 7 -- 2 SOLICITORS: Prosecution on own behalf Guest Lawyers for the defendant [1] The defendant is charged that on 23 February 2012 at Hope Island he unlawfully and indecently assaulted OYR. This is an application under section 83A(5AA) of the Justices Act 1886 for a direction requiring the prosecution to call a number of witnesses to be made available for cross examination on their witness statements. [2] Such a direction must not be given unless I am satisfied that there are substantial reasons why, in the interests of justice, the witness should be made available for cross examination on the witness‟s written statement.1 [3] It is now reasonably well settled that the provisions of section 110B(1) of the Justices Act 1886 were modelled on section 91 of the Criminal Procedure Act 1988 (NSW) and that the NSW authorities in relation to “substantial reasons” afford considerable assistance to the determination under the Queensland Legislation.2 [4] As I stated in the decision in DPP v HCHT delivered on 22 April 2013 a number of relevant principles may be distilled from the New South Wales authorities: (i) The purpose of the legislation is to avoid delay by unnecessary or prolix cross examination at committal3 (ii) 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 interest of justice for reasons that are reasons of substance.4 (iii) The onus of proof is on the defence to satisfy the court that an order should be made.5 (iv) 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. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.6 (v) The application to cross examination 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”.7 (vi) 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.8 1 Section 110B(1) Justices Act 1886 2 See for example Police v BCR [2011] QMC 29; Police v CM [2011] QMC 14; PJK v Police [2011] QMC 43. 3 Sim v Magistrate Corbett [2006] NSWSC 665 4 Hanna v Kearney [1998] NSWSC 227; DPP v Losurdo [1998] 44 NSWLR 618 5 Sim v Magistrate Corbett 6 Sim v Magistrate Corbett 7 Hanna v Kearney (supra) supra; DPP v Losurdo (supra) 8 Hanna v Kearney (supra); DPP v Losurdo (supra) -- 2 of 7 -- 3 (vii) The cross examination may lead to the narrowing of matters in dispute. This may constitute a substantial reason.9 (viii) Where cross examination is likely to result in the discharge of the defendant or to establish grounds for no bill application this may constitute substantial reasons.10. (ix) Where cross examination is likely to substantially undermine the credit of an important witness, this could constitute a substantial reason.11 (x) Avoidance of the defendant being taken by surprise at trial may constitute a substantial reason.12 (xi) The avoidance of a Basher Inquiry will be a substantial reason.13 (xii) Substantial reason might exist where cross examination might give rise to a discretional determination to reject evidence at trial.14 (xiii) Not all contradictions or inconsistencies warrant intervention at committal.15 However inconsistencies creating ambiguity will justify cross examination to enable the defendant to know the case to be met at trial.16 (xiv) Where a complainant has given differing versions of events this may be a special reason to justify cross examination. [5] The complainant has provided a statement in which he details his version of what occurred when he attended a radiology clinic for the purpose of having an ultrasound of his liver. He refers to a discussion between himself and the defendant radiographer about the importance of regular prostate and testicular checks, an offer by the defendant to check the complainant‟s prostate which was accepted by the complainant and the defendants subsequent touching of the complainant‟s penis and testicles. [6] Subsequent to making a complaint to the police the complainant secretly recorded a conversation with the defendant in which the complainant raised his concerns about what had taken place. [7] The defendant seeks to cross examine the complainant in regard to: (a) His recollections of what was said by both the defendant and the complainant at the time of the alleged offence; (b) The complainant‟s conduct immediately after the events giving rise to the complaint [8] The defendant asserts that the credibility of the complainant is paramount to the success of the prosecution, that the complainant speaks a language other than English such that his understanding of what was occurring needs to be examined and his capacity to be confused due to language difficulties requires examination. It is further asserted that in the recorded conversation the complainant appears to „agree‟ that he might be mistaken as to what occurred such that there may have been some confusion on the complainant‟s part as to understanding what took place, and that these are matters that will affect the reliability of the complainant‟s evidence. 9 Goldsmith v Newman (1992) 59 SASR 404; Hanna v Kearney (supra); DPP v Losurdo (supra) 10 Hanna v Kearney (supra); DPP v Losurdo (supra) 11 Hanna v Kearney (supra); DPP v Losurdo (supra) 12 Poliakov v Magistrate Andrew George [2009] NSAWSC 1133 13 Abdel-Hady v Magistrate Freund & anor [2007] 177 A Crim R 517 14 Sim v Magistrate Corbett (supra) 15 Anderson v DPP BC 2009 09917 16 B v Gould (1993) 67 A Crim R 297 -- 3 of 7 -- 4 [9] I have listened to the covert recording of the conversation that took place between the complainant and the defendant subsequent to the incident the subject of the charge. Having listened to that recording the submission of the defendant that the complainant‟s understanding of the English language needs to be explored in cross examination as it may reflect on his understanding of what was actually said by the defendant at the time of the alleged offence is unfounded. Whilst the complainant‟s English is heavily accented his capacity to understand and communicate in the English language is patent. [10] The defendant also seek to cross examine the complainant as to his recollection of what was said in the consultation room asserting, “he has stated that he had just received a prostrate (sic) examination by a doctor recently. Why was he consenting to a further examination? Was there a legitimate medical reason for him to be concerned? Why does he state that he is familiar with the procedure? Has he had numerous prior examinations of this type. These matters will affect the reliability of the complainant‟s evidence.” [11] The fact that the defendant would hope to illicit information that would adversely affect the complainant‟s reliability does not constitute a substantial reason in the interests of justice for permitting cross examination.17 Rather this is more akin to the situation in Anderson v DPP BC2009 09917 where the defendant asserted that she had been sexually assaulted and the defendant maintained that the intercourse was consensual and gave an account inconsistent with that of the complainant in certain particulars. The magistrate determined that inconsistencies between the complainant‟s version of events and the defendant‟s version of events were not an inconsistency justifying leave to cross examine. On appeal Harvey J stated that inconsistencies between the account of the complainant and the account of the defendant did not need to be explored in committal proceedings. [12] There is not an inconsistency between the account of the plaintiff given in his statement and the questions asked and statements made by the complainant during the covertly recorded conversation. There is nothing in the statement of the complainant that raises concerns that would suggest that cross examination would substantially undermine the complainant‟s credibility so as to afford a special reason in the interests of justice for cross examining the complainant about what took place in the examination room at the radiology clinic. [13] The defendant asserts that cross examination will particularise the case against the defendant. The complainant‟s statement of the incident that has given rise to the charge sufficiently particularises the facts relied upon to support the charge and it is difficult to appreciate how cross examination of the complainant will enable further particularisation and indeed it is noted that the submissions of the defendant do not specify the allegations of which particularisation is sought. [14] The defendant asserts that the complainant‟s statement and the covert recording raise the issue of mistake of fact and accident and that cross examination is sought for the purpose of identifying whether those defences will have any application. I fail to see that this affords a substantial reason in the interest of justice for affording the defendant the opportunity to cross examine the complainant prior to the trial. Nor am I persuaded that cross examination may identify whether the actions of the 17 Hanna v Kearney [1998] NSWSC 227; DPP v Losurdo [1998] 44 NSWLR 618 -- 4 of 7 -- 5 defendant are authorised or justified in law and that this therefore constitutes a substantial reason in the interests of justice. [15] The application to cross examine the complainant in relation to his conduct immediately following the alleged assault is based on the complainant‟s failure to yell out, seek assistance, immediately stop the procedure or to complain to management or staff immediately after the incident. [16] In his statement the complainant states that after leaving the radiology clinic he telephoned a friend to discuss whether or not he should go to the police. He then discussed the matter with his wife, after which he decided to make a complaint to the police. [17] The incident at the radiology clinic took place on 23 February 2012. The defendant‟s police statement is dated 24 February 2012. In the circumstances I do not consider that the defendant‟s failure to make a complaint at or to staff at the radiology clinic or to leave part way through the examination, raises serious concerns about the complainant‟s credibility that would warrant cross examination at committal. [18] The factual situation here is markedly different from that in P v CM [2011] QMC 14 referred to by the defendant. In the circumstances of that particular case the complainant‟s permitting the defendant to stay overnight following the alleged rape and her failure to mention rape in her 000 call to the police meant that cross examination was likely to substantially undermine the credibility of an important witness. [19] The alleged omissions of the part of the complainant in this case do not satisfy me that cross examination is likely to substantially undermine the complainant‟s credit. [20] The defendant also seeks to cross examine Dr MJR, the sole director of the radiology clinic where the alleged assault took place. He is a medical practitioner with qualifications in diagnostic radiology, nuclear medicine and general practice. His first statement contains the following: “8. Described below are two paragraphs highlighting the role or duties of an ultrasonographer and the role of an ultrasonographer has when an anticipated consultation with a patient is possibly adverse in nature” 9. The role of an ultrasonographer is to perform an ultrasound examination as per the written diagnostic imaging request slip. On occasion there may be a need for the ultrasonographer to modify or change the examination, and on other occasions there may be a need for additional examinations to be completed. If there is any alteration to the requested test, this is documented on the ultrasonographer‟s notes by the attending ultrasonographer on all occasions. Accordingly the reporting Radiologist will document any alteration made to the requested test, and document any additional studies performed in the formal radiology report. 10. In the circumstances when an attending professional staff member, feels that the examination has the potential of being an “adverse event” for whatever reasons, the attending staff member is encouraged to -- 5 of 7 -- 6 communicate this in some manner to other staff members – pending the degree of adversity perceived. This can range from being a simple conversation with a fellow ultrasonographer, or extending to requiring formal written documentation of the event.” Dr MJR then goes on to note that there was no documented additional or altered examination provided by the defendant or any record of him of having concern over a possible adverse event of the complainant patient. [21] Dr MJR provided an addendum statement in which he states: “In regard to prostate examinations, in the mainstay at Radiology practices this is only provided by a trans-abdominal study. Trans-rectal prostate examinations are generally performed by urologists. Digital examinations of the prostate gland are only performed by doctors, or on occasions in specialised clinics dealing exclusively in prostate conditions by authorised personnel such as nurses. Digital examinations of the prostate gland have never been performed in radiology practices UNLESS the practice is performing trans-rectal studies (by ultrasound or recently with MRI). [Name of Radiology Practice] does not perform trans-rectal studies. Examinations are performed by medically qualified doctors or under strict authorization (sic) and guidance by staff in specialized (sic) circumstances / clinic. There are no [name of clinic] staff with this authority.” The addendum statement of Dr MJR also details patient preparation procedures for a liver scan compared to a prostate scan. [22] There is ample information before the court as to Dr MJR‟s qualifications and it is difficult to understand how allowing cross examination of those qualifications at committal stage is likely to advance the interests of justice. It is asserted that the evidence sought to be adduced by Dr MJR is not admissible because he is not suitably qualified as an expert in “this field”. It is not clear what field is being referred to. It is also asserted that he is not “unbiased” as he is the practitioner who owns the practice that employed the defendant. I suspect that the defendant‟s concern in this regard is not so much one of bias as lack of independence. However, as a qualified radiologist and general practitioner his expertise in regard to radiology practice is clear. As the owner of the radiology practice where the specific incident took place, his evidence of practice of that particular clinic or indeed of radiology practice in general is clearly relevant and admissible. [23] I am however concerned with paragraph‟s 8, 9 and 10 of Dr MJR‟s first statement. [24] In relation to Dr MJR‟s first statement the defendant seeks to cross examine Dr MJR as to his ability to give expert evidence, the procedure employed by the practice, clarification of the issues associated with the “role or duties of an ultrasonographer” and the “role that an ultrasonographer has when an anticipated consultation with a patient (who) is possibly adverse in nature” procedure, and his statements in regard to digital examinations of the prostate. At paragraphs 8, 9 and 10 of Dr JMR‟s first statement it is not clear whether the doctor is quoting from a text or a procedural manual, or whether he is stating his opinion of the role of an ultrasonographer. Nor is it clear whether the “role” as perceived by Dr MJR was or ought to have been known by the defendant. As a matter of fairness, the defendant is entitled to know the source of the statements contained at paragraphs 8, 9 and 10 of the first statement of Dr MJR and whether to his knowledge the defendant was familiar with Dr MJR‟s perception of the role or duties of an ultrasonographer. -- 6 of 7 -- 7 [25] In the circumstances I am satisfied that there is a substantial reason in the interests of justice why the defendant ought to be able to cross examine Dr MJR on paragraphs 8, 9 and 10 of his statement dated 9 February 2013, with respect to the basis of the statement and his knowledge of whether the defendant knew or ought to have known of the role or duties of an ultrasonographer in the circumstance detailed. This is necessary to enable the defendant to know the case he has to meet at trial and to enable proper particularisation of the case against him. [26] In relation to Dr MJR‟s evidence regarding prostate examinations, as Dr MJR is not a urologist, as a matter of fairness the defendant should be permitted to cross examine him as to the basis of knowledge of the matters stated in paragraphs 6 and 7 of the addendum statement. [27] In the circumstances the application to cross examination of the complainant is refused. However I give leave for the defendant to cross examine Dr MJR on the issues of: (a) the source of the information detailed at paragraphs 8, 9 and 10 of his statement dated 9 February 2013 and whether to his knowledge the defendant knew or ought to have known of the information detailed in those paragraphs; and (b) the basis of his knowledge of the matters detailed at paragraphs 6 and 7 of his addendum statement. -- 7 of 7 --