Applications to Cross Examine Witnesses in Committal Hearings. Bar Association Annual Conference 2012

Transcription

1 Applications to Cross Examine Witnesses in Committal Hearings Bar Association Annual Conference 2012 Since the Moynihan reforms to committal proceedings I have made 5 applications to crossexamine witnesses. When I say applications, I mean applications to the prosecution, because on 3 of those 5 occasions cross-examination has been consented to, and on one has at least been consented to in part with an argument in 3 weeks about the remainder. The nature of the charges has ranged from historical sex to AOBH in Co, Dangerous Operation of a MV causing death and Attempted Murder. The applications have been in Toowoomba, Richlands, Southport and Brisbane and have been to both the DPP and the PPC. Despite the many concerns about both organisations staunchly refusing ever to give consent I have not found that to be so. Nor on my review of the published decisions of Queensland Magistrates does it appear that they are reluctant to allow cross-examination at committals, quite the contrary. There were 15 reported occasions of applications to cross-examine in No doubt there were many more unreported. On review, 3 were dismissed 2 and 12 were granted at least to some extent. That mirrors my own experience that the fears that cross-examination would not be allowed under any circumstances are largely unfounded. There is a tension between disclosure of the problems in the Crown s case and perhaps some of the defence case as against the benefits that can arise from cross-examination. In my view, in most cases the benefits outweigh the risks. If you think you are the only person who has noticed the holes in the Prosecution case, you are forgetting that as well as an Arresting Officer and any number of other involved police, the PPC and/or a legal officer at the DPP as well as at least one Crown Prosecutor are all going to review the evidence and it is ultimately unlikely that they will all completely miss your big point hidden in the material. Not impossible, but unlikely. It is important also to remember that at committal fewer, and often very less experienced, eyes will have been cast over the brief from the Crown side. What do you lose by disclosing the holes in the Crown case? One would hope that you lose only the advantage of surprise as between you and the Crown and not as between you and the witnesses. You might give the Prosecution time to plug up the holes with addendum statements, but again it has been my experience that that has not been done, and in any case 1 Blacklidge v Police [2011] QMC 007 (also at [2011] QMC 001); Police v K [2011] QMC 2; R v ED [2011] QMC 3; Police v DWB [2011] QMC, CM; KD v Police [2011] QMC 5; Police v NM [2011] QMC 10; Police v CM [2011] QMC 14; Police v HJW [2011] QMC 19; Police v Murphy [2011] QMC 23; Police v BCR [2011] QMC 29; Police v KA [2011] QMC 39; PJK v Police [2011] QMC 043; Police v Cain [2011] QMC 47; Police v Zapala [2011] QMC 48; BMS v Police [2011] QMC Blacklidge v Police [2011] QMC 007 (also at [2011] QMC 001); Police v K [2011] QMC 2; Police v KA [2011] QMC 39

2 over the years the attempts I have seen to plug up holes in prosecution cases with addendum statements more often than not creates more rather than less problems for the Crown. For my part, if it were to become the norm that upon such an application the Prosecuting authority would simply have addendum statements obtained to plug the holes, it would militate strongly against making applications to cross-examine at committals, and weigh heavily in favour of leaving the powder dry for trial. No defence practitioner wishes to disclose the problems only to have them filled by addendum statements filtered through the mind and computer of the police officer taking the statement. The power in cross-examination is in seeing the reaction and initial response of a witness to questioning, not the end result of a sometimes lengthy conference with police and the sanitised version then provided. The PPC in at least one case, after failing in their opposition to my cross-examining the complainant in an historical sex case then proceeded to show the complainant my application and outline of argument, no doubt in the hopes that he would be well versed in what areas I would cover. It really didn t help him all that much. This approach however is also to be decried. Once again, if it were to become the norm, in my view it would mean many practitioners would not bother with making applications for committals. Practice Directions and Legislation NB: The Practise Directions DO NOT apply to Matters which are exclusively Commonwealth offences; Matters in the Children s Court; and Matters referred to the Specialist Courts and programmes. The Committal Callover 1. In accordance with Practice Direction No. 10 of 2010 after 1 or 2 appearances, there will be a committal callover. At that stage all that the defence will have is a QP9 unless in accordance with Practice Direction No. 9 of 2010, the defence have requested copies of certain specified statements and/or exhibits be prepared, copied and delivered, such delivery to occur within 14 days where practicable. If such a request has been made, the matter will be adjourned for at least 21 days to allow delivery of the material. 2. At the second committal callover after delivery of the requested material, or where no material is requested, at the first committal callover, the court expects that there will have been a case conference in accordance with Practice Direction No. 9 of Case Conference means negotiations, (including discussions as to whether or not negotiations will take place) between prosecutions and defence to discuss issues in dispute in order to bring about an early resolution to proceedings, which negotiations

3 may result in, but are not limited to the amendment, substitution or withdrawal of charges and/or the agreement as to a factual basis of sentence and submissions on the sentence range 4. At the relevant callover it is expected that both sides will be in a position to indicate how the matter is to proceed whether by committal for sentence, registry committal, ex-officio or for an application to cross-examine witnesses. 5. In accordance with Practice Direction No. 10 of 2010 if the Court is not advised that the matter is to proceed by way of ex officio indictment or by way of consent committal for sentence then a Full Brief of evidence is to be prepared and delivered within 35 days and the matter is to be adjourned for a committal mention to a date no earlier than 49 days. 6. At the committal callover it is contemplated by Practise Direction No. 12 of 2010 that there will have been discussions as to which witnesses the defence wishes to crossexamine and whether the Crown consents. In practise that is unlikely given that a brief will not yet have been prepared. The Committal Mention 7. At the committal mention, in accordance with Practise Direction No. 12 of 2010 the matter can be either a full hand up committal, or alternatively adjourned for not less than 21 days for purposes of an application to cross-examine witnesses. The Application in Writing 8. In accordance with Practise Direction No. 12 of 2010 the Defence will then serve upon the Prosecution a notice under S 110B (3)(a) within 7 days giving the Prosecution 7 days to respond under S 110 (3)(b) (in practise this will be when the Prosecution will either consent or not consent to cross-examination of the witnesses). 9. If the Prosecution consents to cross-examination, that is the end of the matter. There is no discretion in a Magistrate to reject cross-examination agreed by both parties The decision of the Prosecution will be based on the Director s Guideline #15, that is that consent should not be given unless: 3 110A(5) and 110B(5) Justices Act 1886; Police v DWB [2011] QMC 4 [17]

4 unless there are substantial reasons why it is in the interest of justice that the person should attend to give oral evidence. In determining if there are substantial reasons the prosecutor should consider: 1. The nature of the offence; 2. The nature of the witness, including Whether the evidence can be confined to an identified and limited issue; Whether the witness is the best person to give the evidence concerning that issue; and The purpose for which the evidence is to be used. Finally, the cross-examination must be restricted to the area that gives rise to the interest of justice and is not at large. 11. The discretion whether or not to call a material witness at the committal proceeding should not be made simply by reference to tactical considerations It is important that the application be made in accordance with the legislation, because under section 110B (3) of the Justices Act 1886 an application under section 83A (5AA) may be made only if 5 (a) the defendant has, by letter, or by 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; (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; and 4 Police v DWB [2011] QMC 4 [18] referring to the decision in R v B (No 2) [2010] QDC 417 at [10] citing R v Walden (1986) 23 A Crim R 242 at Failure to comply may mean that the application would be summarily dismissed: see Blacklidge v Police [2011] QMC 007 at [9] and [106], Police v K [2011] QMC 2 [7]-[12].

5 (b) the prosecution s response to the defendant s communication (the prosecution s response) has been received, or it has not been received within the nominated time; and (c) there is filed with the application (i) a copy of the defendant s communication; and (ii) the prosecution s response, if it has been received. 13. The Defence is to file an application under S 110B (7) and S 83A in the form set out in Annexure A to Practice Direction No 12 of 2010 within 5 days of the last date for the Prosecution response It would appear there is no Practice Direction in relation to the filing of written outlines, however in practice, there are often orders made. The Oral Application 15. On the day of the oral application if, after argument, the application is unsuccessful, then in accordance with Practise Direction No. 12 of 2010 the matter is to proceed on that day as a S 110A committal; 16. If the application is successful then the matter is to be adjourned for committal hearing no earlier than 28 days or such shorter time as consented to by both the prosecution and the defence. The Law 17. With respect, the law has been usefully traversed in a number of recent decisions of Queensland Magistrates 7. The early decisions in Blacklidge v Police [2011] QMC 007 (also at [2011] QMC 001), Police v K [2011] QMC 2 and Police v DWB [2011] QMC 4 have largely summarised the law, which for the most part is derived from New South Wales decisions, for the reason that our legislation and test is based on the NSW equivalent. Subsequent decisions largely refer to the same New South Wales 6 Justices Act 1886 Directions Hearing for the Court to determine whether or not to require a person who has made a written statement to attend to give oral evidence (Applications for same must be served 2 days prior to the hearing). 7 Blacklidge v Police [2011] QMC 007 (also at [2011] QMC 001) decision of Hine, DCM; Police v K [2011] QMC 2 decision of C Callaghan, M; R v ED [2011] QMC 3 decision of C Callaghan, M; Police v DWB [2011] QMC 4 decision of Judge Butler SC, CM; KD v Police [2011] QMC 5 decision of Hine, DCM; Police v CM [2011] QMC 14 decision of C Callaghan, M; Police v NM [2011] QMC 10 decision of B Callaghan, M.

6 decisions or to Blacklidge, K or DWB 8. Below it is submitted are the principles which can be distilled from those decisions. The Onus 18. The onus is on the Applicant to show substantial reasons why cross-examination should be allowed 9. Some Ground Rules, The Purpose of the Legislation and the Purpose of Committals 19. Not all contradictions or inconsistencies between witnesses warrant interrogation at a Committal Proceeding and committal proceedings are not to provide the opportunity for a full dress rehearsal for the trial 10 ; 20. 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" The availability of other evidence to implicate an Applicant, however persuasive it might be standing alone is not determinative of the question whether the interests of justice require cross-examination of a particular witness Because it seems that most Magistrates refer to the law as summarised in prior decisions of Queensland Magistrates, I have referenced the decisions of Queensland Magistrates, and the New South Wales authorities to which they were referring. Almost all decisions refer to the same passages from the same cases. For that reason, unless in the later decisions something new has arisen, I have not referred to the later decisions in the footnotes. 9 Blacklidge v Police [2011] QMC 007 at [20] on page 7 and [45] referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage affirmed in Poliakov v Magistrate Andrew George [2009] NSWSC 1133 at [26]. See also [52]; Police v K [2011] QMC 2 [6] and [22] referring to the decision in Quami v DPP [2008] NSWSC 675; R v ED [2011] QMC 3 at [5]; Police v DWB [2011] QMC 4 at [10] and [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim. 10 Blacklidge v Police [2011] QMC 007 at [17] referring to the decision in Hanna v Kearney (1998) NSWLR 618; Police v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618 and [23] referring to the decision in Quami v DPP [2008] NSWSC 675. Police v ED [2011] QMC 3 [17] referred to K with approval and at [19] referring to Quami; Police v DWB [2011] QMC 4 at [28] referring to Losurdo and Hanna and at [53]. 11 Blacklidge v Police [2011] QMC 007 at [49] referring to the decision in Hanna v Kearney (1998) NSWLR 618 and at [66] referring to the decision in DPP v Losurdo (1998) 44 NSWLR 618 confirming Hanna v Kearney; ;R v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [28] referring to Losurdo and Hanna. 12 Blacklidge v Police [2011] QMC 007 at [82] on page 40 referring to the decision in Micallef v DPP [2001] NSWSC 1172; R v KD [2011] QMC 5 at [23] page 11 referring to Poliakov

7 22. The purpose of the legislation is to avoid delays to limit the time occupied in committal hearings It was said of the NSW equivalent upon which the Queensland legislation is based. That the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of committal proceedings that there would rarely be more than a paper committal On any application to cross-examine witnesses the fundamental objective of a committal hearing, that is to facilitate a fair trial, must be borne in mind 15.. It has been said that there are 3 principal purposes of a committal 16 : To ensure the defendant is not put on trial on indictment without sufficient cause; to allow the defendant to learn the case against him or her; and to marshal the evidence into deposition (written) form. 25. It has been said 17 that the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 reflect the views expressed by Dawson J in Grassby v The Queen 18 when he said: The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to 13 Blacklidge v Police [2011] QMC 007 at [20] at page 7 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26]; Police v K [2011] QMC 2 at [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618 and at [22] referring to the decision in Quami v DPP [2008] NSWSC 675. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim; R v KD [2011] QMC 5 at [23] at page 10 referring to Poliakov 14 Blacklidge v Police [2011] QMC 007 at [69] on page 30 referring to the decision in Poliakov v Magistrate Andrew George [2009] NSWSC 1133 and at [81] on page 38 referring to the decision in Losurdo ; Police v K [2011] QMC 2 at [19] referring to DPP v Losurdo (1998) 44 NSWLR Blacklidge v Police [2011] QMC 007 at [66] referring to the decision in Losurdo confirming Hanna v Kearney and at [69] on page 29 referring to the decision in Poliakov v Magistrate Andrew George [2009] NSWSC 1133; Police v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618; Police v DWB [2011] QMC 4 at [28] referring to Losurdo and Hanna, at [29] referring to Burton and at [31] 16 Blacklidge v Police [2011] QMC 007 at [18] at page 5 discussing the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 and at [20] at page 7 referring to the High Court decisions in Grassby v R (1989) 168 CLR 1 and Barton v R (1980) 147 CLR 75; Police v DWB [2011] QMC 4 at [30] also referring to the explanatory notes, Grassby and Barton. 17 Police v Murphy [2011] QMC Grassby v R (1989) 168 CLR 1 at 15

8 put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. 26. It has also been said of committals, that the opportunity to cross-examine witnesses is a legitimate benefit of committal proceedings to a defendant quite apart from the opportunity of discharge by the Magistrate, and that the modern procedure of service of statements has not diminished the force of the following remarks 19 : These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused. An accused also loses the opportunity of gaining relatively precise knowledge of the case against him and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by crossexamination. A court, in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence. But the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown's evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused Blacklidge v Police [2011] QMC 007 at [21] at page 9 referring to the decision in Barron v A-G (NSW) (1987) 10 NSWLR 215 at 217 which in turn referred to the decision in Barton v R (1980) 147 CLR 75 at ; R v ED [2011] QMC 3 at [24]; Police v K [2011] QMC 2 at [20]-[21] referring to Barton v R (1980) 147 CLR 75 at and Police v ED [2011] QMC 3 [24] referred to K with approval 20 Police v K [2011] QMC 2 at [20]-[21] quoting Barton v R (1980) 147 CLR 75 at and the observations of Studdert J in Hanna that the provision of statements has not diminished the force of these remarks.

9 Substantial Reasons 27. Substantial Reasons are not as high an onus as special reasons What are substantial reasons are to be considered in the context of the particular facts and circumstances of the case and flexibility of approach is required in light of the issues in a particular matter The word substantial is used to qualify reasons in a way which makes clear that it is not any reasons but substantial or significant reasons that are required. In that sense the term is used to mean reasons other than reasons which would be described as ephemeral or nominal. The reasons are not required to be special, extraordinary or exceptional There is no requirement for something unusual or out of the ordinary to warrant the finding of substantial reasons. This was said in the context of inconsistencies between accounts Although it is impossible to state exhaustively what may amount to substantial reasons, and it would be wrong to limit what may amount to special reasons 25 some examples include: Where cross-examination may (or is likely to) result in the discharge of the defendant or lead to a successful no-bill application 26 ; 21 Blacklidge v Police [2011] QMC 007 at [20] at page 7 and at [51] referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26]; Police v K [2011] QMC 2 [22] referring to the decision in Quami v DPP [2008] NSWSC 675 ; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim. 22 Blacklidge v Police [2011] QMC 007 at [20] at page 8 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26]; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim. 23 Blacklidge v Police [2011] QMC 007 at [61] on page 21 referring to the decision in Abel-Hady v Magistrate Freund and Anor [2007] NSWSC 1247 at [35]-[36] ; KD v Police [2011] QMC 5 at [18] referring also to Abel- Hady 24 Blacklidge v Police [2011] QMC 007 at [69] at page 32 referring to the decision in Poliakov at [32] which affirmed the decision in Murphy v DPP [2006] NSWSC Blacklidge v Police [2011] QMC 007 at [20] at page 8 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26] and at [66] referring to the decision in DPP v Losurdo (1998) 44 NSWLR 618 at 627; Police v K [2011] QMC 2 at [16], [20] and [22] referring to Hanna, Losurdo and Quami respectively; Police v ED [2011] QMC 3 [17]-[19] referred to K with approval; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim and at [28] referring to Losurdo and Hanna. Police v CM [2011] QMC 14 at [13] referring to K with approval; KD v Police [2011] QMC 5 at pp 10-12; Police v NM [2011] QMC 10 at [10]-[12]

10 31.2. Where there is a real possibility that, if the alleged victim is subject to crossexamination, the accused person will not be committed to trial 27 ; If the alleged victim has given more than one version of an alleged offence and those versions are inconsistent that is sufficient to show special reasons 28 ; Where cross-examination is likely to undermine substantially the credit of a significant witness 29 ; Where a significant witness has given inconsistent versions, for example after being provided with a state sanctioned inducement in a drug case to ascertain the circumstances in which that inducement was offered, and even where information about that issue could otherwise be ascertained by subpoena and/or particulars 30 ; A properly conducted committal might benefit the prosecution as much as the defence. While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty. Exploring the strength of the Crown case is, at least to a point, a legitimate objective of cross-examination at committal, although defendants plainly cannot be given the unbridled rein they previously had. The significance of the evidence to be 26 Blacklidge v Police [2011] QMC 007 at [20] at page 8 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [69] on page 30 referring to the same passage in Poliakov v Magistrate Andrew George [2009] NSWSC 1133 and at [61] on page 22 referring to the decision in Abel-Hady v Magistrate Freund and Anor [2007] NSWSC 1247 at [37]; Police v K [2011] QMC 2 [10] and [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618 and [22] referring to the decision in Quami v DPP [2008] NSWSC 675. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim and at [28] referring to Losurdo and Hanna; R v KD [2011] QMC 5 at [23] referring to Poliakov. 27 Blacklidge v Police [2011] QMC 007 at [61] at top page 22 referring to the decision in B v Gould (1993) 67 A Crim R Blacklidge v Police [2011] QMC 007 at [61] at top page 22 referring to the decision in B v Gould (1993) 67 A Crim R 297 and at [69] on page 33 referring to the decision in Poliakov at [34]; KD v Police [2011] QMC 5 at [42] referring to Sim 29 Blacklidge v Police [2011] QMC 007 at [20] at page 8 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [66] on page 24 referring to the decision in Losurdo confirming Hanna v Kearney and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26] ; Police v K [2011] QMC 2 [10] and [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618 and [22] referring to the decision in Quami v DPP [2008] NSWSC 675. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim and at [28] referring to Losurdo and Hanna. R v KD [2011] QMC 5 at [23] referring to Poliakov. 30 Blacklidge v Police [2011] QMC 007 at [69] on page 33 referring to the decision in Poliakov at [35]

11 adduced from a particular witness in the Crown case is clearly a relevant consideration Where cross-examination is necessary to avoid the defendant being taken by surprise at trial To enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial For a proper understanding of the nature of the prosecution case or to assist both defence and prosecution to prepare for trial by clarifying the evidence that may be given about crucial aspects of the applicant s alleged conduct For an understanding of the basis of a relevant opinion held by a witness 35 for example where evidence is to be given of codes used in intercepted conversations alleged to be about drugs 36 ; Where it may lead to the narrowing of matters in dispute. This is of particular importance where the prospect of a lengthy trial exists Blacklidge v Police [2011] QMC 007 at [69] at page 31 referring to the decision in Poliakov at [27] which affirmed JW v DPP [199] NSWSC Blacklidge v Police [2011] QMC 007 at [20] at page 8 referring to the decision in Sim v Corbett [2006] NSWSC 665 and at [27] on page 14 referring to the decision in DPP v Losurdo (1998) 44 NSWLR 618 and at [69] on page 30 referring to the same passage affirmed in Poliakov at [26]; Police v K [2011] QMC 2 [10] and [22] referring to the decision in Quami v DPP [2008] NSWSC 675; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim; R v KD [2011] QMC 5 at [23] referring to Poliakov 33 Blacklidge v Police [2011] QMC 007 at [56] and at [69] on page 31 referring to the decision in Sim v Corbett [2006] NSWSC 665 as affirmed in Poliakov at [26]; Police v K [2011] QMC 2 [6] and [22] referring to the decision in Quami v DPP [2008] NSWSC 675; Police v ED [2011] QMC 3 [19] referring to the decision in Quami v DPP [2008] NSWSC 675; Police v DWB [2011] QMC 4 at [27] referring to the explanatory notes to the Civil and Criminal Jurisdiction reform and Modernisation Amendment Bill 2010 which in turn referred to Sim. 34 Blacklidge v Police [2011] QMC 007 at [66] referring to the decision in Losurdo confirming Hanna v Kearney and at [69] on page 29 referring to the same passage affirmed in Poliakov at [23] ; Police v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [28] referring to Losurdo and Hanna and at [54]- [55] referring to Hanna 35 Blacklidge v Police [2011] QMC 007 at [66] referring to the decision in Losurdo confirming Hanna v Kearney and at [69] on page 29 referring to the same passage affirmed in Poliakov at [23]; Police v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618. Police v ED [2011] QMC 3 [17] referred to K with approval; Police v DWB [2011] QMC 4 at [28] referring to Losurdo and Hanna. 36 Blacklidge v Police [2011] QMC 007 at [69] on page 33 referring to the decision in Poliakov at [36]; Police v Murphy [2011] QMC 23 at [73]-[81] 37 Blacklidge v Police [2011] QMC 007 at [66] referring to the decision in Losurdo confirming Hanna v Kearney) and at [69] on page 29 referring to the same passage affirmed in Poliakov at [23]; Police v K [2011] QMC 2 [10]; Police v K [2011] QMC 2 [16] referring to the decision in Hanna v Kearney (1998) NSWLR 618. Police v ED [2011] QMC 3 [17] referred to K with approval

12 To avoid a Basha inquiry: the avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice Where a complainant is already to be cross-examined on an issue going to credit and reliability, and in determining whether the matter should be committed for trial, there are substantial reasons to allow cross-examination on other matters relevant to credit and reliability which alone may not have passed the substantial reason test. The totality of cross-examination as to matters of credit and reliability may then be considered as a body of evidence upon which a determination can be made whether the matter should be committed In relation to historical sex cases the interests of justice should take into account that a Longman 40 direction will need to be given calling for the complainant s evidence to be scrutinised with care. In those circumstances, any assistance the defendant can obtain from cross-examination on certain issues may help to achieve a fair trial 41. Examples include the mental health of the complainant, and the timing of events In relation to complaint evidence some examples include 43 : To ascertain the nature of complaints if they are ambiguous and where it may show intentional or unintentional collusion or contamination where two victims have discussed or complained together To ascertain the details of the complaint to ascertain inconsistency in versions of events given to the police, to independent friends and/or to the Court. Such evidence may also show a reconstruction of events To ascertain why when there has been a prior opportunity, there has been a failure to complain Blacklidge v Police [2011] QMC 007 at [62] referring to the decision in B v Gould (1993) 67 A Crim R 297 at [42]-[44] and at [69] on page 31 referring to the same passage affirmed in Poliakov at [28] and at [69] on page 34 where that passage was further applied in Poliakov at [39]. See also [65] and [76]-[77]; Police v ED [2011] QMC 3 [26] referred to Blacklidge with approval; Police v DWB [2011] QMC 4 at [32]. 39 Police v CM [2011] QMC 14 at [25]-[27] 40 Longman v R (1989) 168 CLR KD v Police [2011] QMC 5 at [7]-[12] 42 KD v Police [2011] QMC 5 at [24], [33] and [37]; Police v HJW [2011] QMC 19 at [62] 43 Blacklidge v Police [2011] QMC 007 at [62] referring to the decision in B v Gould (1993) 67 A Crim R 297 at [42]-[44].; KD v Police [2011] QMC 5 at [56]-[57]; Police v HJW [2011] QMC 19 at [45] 44 Police v CM [2011] QMC 14 at [19]-[20]