Archer v Police [2011] QMC 54

MAGISTRATES COURTS OF QUEENSLAND CITATION: Archer v Police [2011] QMC 54 PARTIES: BRENDAN JAMES ARCHER (applicant) v POLICE (respondent) FILE NO/S: MAG91848/11(2) DIVISION: Magistrates Courts PROCEEDING: Application to cross-examine a witness in a committal proceeding ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 14 December 2011 DELIVERED AT: Southport HEARING DATE: 14 December 2011 MAGISTRATE: Costanzo JJ ORDER: Application granted CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - interests of justice Justices Act 1886 (Qld), s 83A(5AA), s 110B COUNSEL: JG Buckland for applicant DRP Bettany (sergeant) for respondent SOLICITORS: Buckland Allen Criminal Lawyers for applicant Respondent on own behalf -- 1 of 10 -- 2 The Application [1] I have before me an application to cross-examine one witness, a Dr Wen-Shan Soong. The application is made pursuant to section 83A of the Justices Act 1886, and particularly under subsection (5)(aa). [2] Brendan James Archer is facing one charge that on 29 May 2011 at Surfers Paradise in the State of Queensland he unlawfully did grievous bodily harm to Brae Thomas Wheildon. [3] The doctor in question is the neurological registrar at the Gold Coast Hospital, where the victim of the alleged offence was treated, but he was treated by other doctors. The doctor was not the treating physician. [4] Dr Soong has gone from medical records only, to opine as follows, as stated in his latest addendum statement: ―We believe that Mr Wheildon had made a gradual recovery from his injury, and it would be reasonable to expect that Mr Wheildon will have no permanent neurological deficit as a result of the alleged assault. Having said this, an injury in his case had the potential to be serious or life-threatening should he have not received any treatment; and Mr Wheildon has been very fortunate in his recovery from this injury. The purported mechanism of his injury is consistent with the clinical and radiological findings, and the effect of such an injury would constitute grievous bodily harm.‖ Relevant law [5] The definition of ‗grievous bodily harm’ appears in section 1 of the Queensland Criminal Code. Under that section, ‗grievous bodily harm’ means (a) ―the loss of a distinct part or organ of the body‖, or (b) ―serious disfigurement‖, or (c) - and perhaps most relevantly here – ―any bodily injury of such a nature that if left untreated, would endanger, or be likely to endanger life, or cause, or be likely to cause permanent injury to health, whether or not treatment is, or could have been, available‖. [6] I note from the annotations in Carter's Criminal Law, at paragraph [1.40], the following: "Act number 3 of 1997 amended this definition, so as to include the loss of a distinct part or organ of the body, and serious disfigurement. The amendment legislatively over-ruled the decision in R v. Tranby [1992] Qd R 432, … where removal of a substantial portion of the earlobe, causing permanent cosmetic disfigurement but no impairment of bodily function, was held not to constitute a permanent injury to health within the meaning of the previous definition." [7] More importantly, the annotation states: -- 2 of 10 -- 3 "The definition was also extended to make it clear that no regard is to be had to the availability of treatment." This confirmed the existing law. In R v. Lobston [1983] 2 Qd R 720 it was held that in deciding what amounts to bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause permanent injury to health, regard is to be had to the nature of the injury itself at the time the harm is done and not to the surrounding circumstances and the availability of medical attention.‖ [8] From 1 November 2010 the Justices Act 1886 (Qld) was amended by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Act No. 26 of 2010). [9] As amended section 83A now provides as follows: 83A Direction hearing (1) This section applies to a proceeding for an offence. (2) A magistrate, on his or her own initiative, may direct the parties to the proceeding to attend at a direction hearing. (3) A party to the proceeding may apply to a court, in the approved form, for a direction hearing. … [10] Subsection (5AA) states: A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)— (a) to attend before the court as a witness to give oral evidence; or (b) to be made available for cross-examination on the written statement. [11] Subsection (5AB) states (inter alia) that subsection (5AA) applies ―subject to section 110B‖ and that subsection (5AA) ―does not apply to a written statement given by an affected child under the Evidence Act 1977 … .”. [12] Subsection (6) provides that a ―direction is binding unless a magistrate, for special reason, gives leave to reopen the direction‖. Subsection (7) provides that a ―direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence‖. [13] As subsection (5AB) stated that subsection (5AA) applies subject to section 110B, I proceed to also state relevant content from section 110B: “110B Special provisions applying to a direction under s 83A(5AA) (1) 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. Note— Under section 83A a magistrate, on the magistrate‘s own initiative, may direct the parties to a proceeding to attend at a direction hearing. -- 3 of 10 -- 4 Also, under that section, a party to the proceeding may apply to a court, in the approved form, for a direction hearing. (2) An application in relation to the maker of a particular written statement may be made only once unless a magistrate gives leave for a subsequent application to be made on the basis of special reasons considered by the magistrate to exist. (3) An application for a direction under section 83A(5AA) may be made only if— (a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following— (i) the name of the maker of the written statement the subject of the application; (ii) the general issues relevant to the making of the application; Examples of general issues— identification evidence, expert opinion evidence (iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence; (iv) a time (the nominated time) for the prosecution to respond to the defendant‘s communication; … .‖ (my emphasis). [14] As no issue has been taken with the procedural requirements of that section or its further content, I will not need to refer further to that section. Restrictions on cross-examination [15] Section 110C is also relevant to these matters. In considering an application under section 83A I believe it is relevant to consider the possible ramifications of making, or not making, an order directing that a witness be made available for cross-examination. Section 110C imposes a limitation on cross-examination. [16] Subsection (1) provides, "If a witness attends before the Justices because of a direction given, on application by the defendant, under section 83A, subsection (5AA), requiring the prosecution to call the witness, the Justices must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the Magistrate for requiring the person to attend." [17] It seems that the effect of the relevant provisions is that once the witness is called, the Court must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the Magistrate for requiring the person to attend. [18] Subject to statutory and Common Law restrictions or prohibitions on cross- examination, a Magistrate may only allow cross-examination of the witness on other issues not relevant to the reasons given by the Magistrate for requiring the person to attend. If satisfied, there are further substantial reasons for doing so. -- 4 of 10 -- 5 “Substantial reasons, in the interests of justice” [19] Turning to the meaning of ‗substantial reasons in the interest of justice‘; clearly, the reasons of substance for calling a witness may be many and varied, and may vary from witness to witness and from case to case. What is substantial and in the interests of justice in relation to one witness may not be so for another witness. What is substantial and in the interests of justice in relation to one case may not be so in another case. [20] There are many cases from New South Wales and now in Queensland which must direct and guide my decision-making here today. In New South Wales, sections 91 and 93 of the Criminal Procedure Act 1986 and their predecessor, section 48E1 of the Justices Act (NSW) in fact had two separate tests, one being the special reasons test for allowing cross examination in cases involving violence and the other being the substantial reasons test for allowing cross examination in all other cases. [21] Because special reasons provided the higher standard, then anything found to be special must also be substantial. The greater includes the lesser, so all the New South Wales cases may potentially provide relevant authority and persuasive guidance to this Court. [22] Therefore, all the NSW cases which interpret these sections are potentially relevant and persuasive. [23] In relation to the similar provision in 48E of the Justices Act (NSW)) in Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions 2(30046/98; 11156/98, judgment delivered on 28 May 1998, unreported), at pages 11 to 12, Studdert J held: 1 Section 48E relevantly provided: ―(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (2) The Justice or Justices may give the direction only if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or (b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. (3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence. (4) A defendant may apply for a direction under subs(1) only if the defendant has served on the informant, within such period as … (7) If the Justice refuses or Justices refuse to give a direction under subs(1), the Justice or Justices must give reasons for doing so. … .‖ 2 Hanna v Kearney was followed and applied in in BJG v Police [2011] QMC 001 per Hine BP, Deputy Chief Magistrate. See also Police v DWB [2011] QMC 004 per Judge Butler SC, Chief Magistrate; KD v Police [2011] QMC 005 per Hine BP, Deputy Chief Magistrate; Blacklidge v Police [2011] QMC 007 per Hine BP, Deputy Chief Magistrate; Police v HJW [2011] QMC 019 per Judge Butler SC, Chief Magistrate; Police v Murphy [2011] QMC 023 per Judge Butler SC, Chief Magistrate; Police v BCR [2011] QMC 029 per Judge Butler SC, Chief Magistrate; Police v Cain [2011] QMC 047 per Judge Butler SC, Chief Magistrate; and Police v Zapala [2011] QMC 048 per Judge Butler SC, Chief Magistrate; -- 5 of 10 -- 6 ―It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s48E: 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 (1992) 59 SASR 404 at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases.‖ [24] While examples are given, in section 110B, subsection (3) of the Queensland Justices Act, of the types of general issues which could be relevant to the making of an application, such as identification evidence or expert opinion evidence, no examples at all are given in the amendments of the types of reasons which an applicant may rely on to justify the calling of the maker of the written statement to give oral evidence. However, the Magistrate is to be satisfied that the reasons are both substantial and in the interests of justice. -- 6 of 10 -- 7 [25] From a number of New South Wales cases that I have considered, we can distil a number of guiding principles. The types of reasons which could be stated in a given case might include, but are not limited to: 1. That the cross-examination will raise a reasonable prospect that the defence will be able to submit that the evidence is not sufficient to put the defendant on trial. 2. That cross-examination of a significant witness is likely to significantly undermine his or her creditability. 3. That cross-examination of the witness is necessary to avoid the defendant being taken by surprise at the trial by information that cannot await its discovery at the trial. 4. That there is a reasonable prospect that cross-examination in relation to certain evidence may give rise to a discretion or decision to rule the evidence inadmissible at the trial. See DPP v. Losurdo [1998] 44 NSWLR 618 at 6203. 5. For a proper understanding of the nature of the prosecution case. 6. For an understanding of the basis of a relevant opinion held by a witness, and 7. Cross-examination may lead to the narrowing of matters in dispute particularly where the prospect exists of a lengthy trial. Relevant and necessary considerations [26] The stated reasons for possibly allowing cross-examination in each case have to be weighed with the following considerations, in my view: 1. The Magistrate must be satisfied that the reasons are both substantial and in the interests of justice; 2. The section has, as a primary aim, the limitation of the time occupied in committal proceedings and cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance; 3. The objective of the proceedings is to facilitate a fair trial in the event that the person charged is committed and later stands trial; 3 Losurdo was followed and applied in BJG v Police [2011] QMC 001 per Hine BP, Deputy Chief Magistrate. See also Police v K [2011] QMC 002; Police v DWB [2011] QMC 004 per Judge Butler SC, Chief Magistrate; KD v Police [2011] QMC 005 per Hine BP, Deputy Chief Magistrate; Police v HJW [2011] QMC 019 per Judge Butler SC, Chief Magistrate; Police v Murphy [2011] QMC 023 per Judge Butler SC, Chief Magistrate; Police v BCR [2011] QMC 029 per Judge Butler SC, Chief Magistrate; Police v Cain [2011] QMC 047 per Judge Butler SC, Chief Magistrate; and Police v Zapala [2011] QMC 048 per Judge Butler SC, Chief Magistrate; -- 7 of 10 -- 8 4. Any statement served has to be considered with reference to the issues it addresses and the charge to which it relates; 5. The application to cross-examination requires identification and consideration of the objective of the cross-examiner and the framework of the prosecution‘s case; 6. In some cases it would be inappropriate to make the defendant wait for a voir dire before the trial Judge to determine if evidence ought to be rejected without any hearing of the relevant matter in cross-examination. The prosecution may be caught short with no forewarning of the criticisms of the defence and the defence may be uncertain of the case he or she has to meet. Again, see the DPP v Losurdo [1998] 44 NSWLR 618. 7. There being no interlocutory appeal from a direction made at a directions hearing in Queensland, then clearly a Magistrate, who is deciding whether to require the witness to be called to give oral evidence ought to be made available for cross-examination, should not only make the decision subject to section 110B, to which I‘ve referred, but should also take into account that any injustice caused by his or her decision may not be cured, if ever, until after a person has been committed, tried, convicted, and has appealed against his or her conviction or sentence; 8. That to reopen a direction leave must first be obtained for a special reason. A test which is a more onerous test to surmount than the substantial reason tests required under section 110B. What may not be “substantial reasons” [27] The following may not be substantial reasons: 1. Obviously, a finding against the ground raised may show the stated reason is not substantial or that it is not necessary in the interests of justice. For example, if a witness is found not to be a significant witness, or that the cross-examination is not likely to significantly undermine his or her credibility, or whether cross-examination could wait for trial without prejudice to the defendant; 2. 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, or put more crudely, fishing. See N v Haskett [2006] NSWSC 114 at paragraph [15]; 3. To provide the opportunity for a full dress rehearsal for the trial. See again Haskett (above) at [15]; -- 8 of 10 -- 9 4. If the defendant will suffer no disadvantage other than that the witness will be cross-examined on one occasion only rather than two; 5. If the witness is no longer going to be relied upon by the prosecution; and 6. Bald assertions that cross-examination will go to the credit of a police witness or other witness, without more. In respect of that issue see McCurdy v McCosker [2002] NSWSC 197 at paragraph [29]4. In McCurdy v McCosker the Court also stated at paragraph 31 that, ―While the defence has the onus of persuading the Court that the order should be made, the prosecution also has a real interest in making sure that the committal proceedings achieve the purpose of ensuring that only appropriate matters are sent for trial.‖ And his Honour made those remarks in the context that that being the case, both parties owed a duty to assist the Magistrate in assessing the reasons propounded. Conclusions [28] In my view, having considered the statement by the doctor and the issues in this case, there are problems with the interpretation of the doctor‘s statement. Specifically, in respect of the opinion: 1. Firstly, as was noted by the Prosecutor, Dr Soong was not the treating doctor and has relied solely upon medical records; 2. He commences the opinion with the words, ―We believe‖, and that relates to the victim gradually recovering and having no permanent neurological deficit. It is this doctor‘s, Dr Soong‘s personal and professional opinion that this Court is interested in. Not some possible, although not necessarily, consensus between doctors; 3. It is not clear whether the remainder of the same paragraph, where an opinion is expressed in relation to grievous bodily harm, that the doctor is again is referring to a possible consensus opinion or some other form of opinion; 4. The reference to the potential to be serious or life threatening makes it unclear whether the doctor had regard, in fact, to the actual definition of grievous bodily harm, despite the fact that in the last line he opines that the injury fits that category. [29] ―Potential‖ here today must be read and understood in its ordinary English usage and context and that context and meaning has no equivalent to ―likelihood‖. In the Concise Oxford Dictionary ―potential‖ is defined to mean ―capable of coming into being or action, latent‖ and grammatically, as ―a possibility‖. 4 See also BJG v Police [2011] QMC 001 and Blacklidge v Police [2011] QMC 007, per Hine BP, Deputy Chief Magistrate. -- 9 of 10 -- 10 [30] Here, cross-examination of Dr Soong is essential, in my view, not only to clear up these issues, but because further evidence may: 1. Inform the defendant of the details of the case against him; 2. Avoid a voir dire or Basha Inquiry in a superior court; and 3. Avoid a trial, potentially. If he cannot be committed on the grievous bodily harm charge, for example, if no jury properly instructed would be able to convict on the charge of grievous bodily harm on the evidence available once he is cross-examined here. [31] Therefore, I am satisfied there are reasons which are both substantial and in the interests of justice why Dr Soong must be called and made available for cross-examination on the issue intimated by Mr Buckland, that is, whether the opinion truly provides evidence from which a jury, properly instructed, could find the injury alleged to be caused by the defendant to be grievous bodily harm and whether they could do so beyond reasonable doubt. Order [32] The application is granted and I direct that the witness Dr Soong be made available for cross-examination, limited to the opinion he states that it is grievous bodily harm and the basis for his opinion. -- 10 of 10 --