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Vines v Mulcahy

 

[2007] QSC 6

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

 

No 10693 of 2006

 

ROBERT McINTYRE VINES

Applicant

and

 

DAMON PETER MULCAHY

First Respondent

and

 

MAGISTRATE JAMES GORDON

Second Respondent

BRISBANE

DATE 08/01/2007

JUDGMENT

 

HIS HONOUR:  The applicant has been charged with seven indictable offences.  His committal proceedings started before a Magistrate, the second respondent, in early May last year. 

 

At the end of the first day of hearing, the proceedings were adjourned to 24th August.

 

At the end of the hearing that day, the matter was again adjourned. 

 

There were mentions on 18th September and 2nd October. 

 

The hearing itself resumed on 10th November, when cross-examination of prosecution witnesses continued. 

 

During the hearing on 10th November, evidence was adduced from Ms Cave, a forensic biologist.  She had examined the case file, which apparently contained information about DNA profiles.  Objection was taken to her giving evidence of the results obtained by other scientists.  The Prosecutor accepted the validity of the objection against reception of such hearsay.  The prosecutor did not suggest that the contents of the file were admissible under any statutory exception to the hearsay rule.

 

The Prosecutor did not then have a certificate that complied with section 95A of the Evidence Act 1977.  One difficulty with an attempt which had been made at creating such a document is that, at the time, there was no "approved form" for such a certificate.  And the applicant's counsel had foreshadowed that his client would not consent to the admission of that failed attempt to supply a s.95A certificate.

 

The Prosecutor, it seems, had not anticipated that the applicant's counsel would object to Ms Cave's testifying to the DNA analysis work undertaken by other scientists.  None of those other scientists was available to give evidence on that day as to what they had done.

 

In the result, there was no DNA evidence before the Magistrate that day linking the applicant to the offences alleged.

 

After some encouragement by the Magistrate to seek an adjournment, the Prosecutor made such a request, stating as  one of the purposes of the adjournment addressing the difficulties encountered in obtaining a proper s.95A certificate. 

 

The adjournment was granted.  Since then, the prosecution has delivered another document which it maintains is a certificate that complies with s.95A. 

 

These proceedings for judicial review challenge the Magistrate's decision to adjourn the proceedings to enable further evidence to be adduced in the prosecution case. 

 

It is said that an adjournment to permit another s.95A certificate to be obtained was inappropriate.  Any new certificate, so it is argued, could not be admissible at the committal proceedings because inevitably it will not have been brought into existence at least 10 business days before the start of the hearing.  See s.95A(3) and the subsection 9 definition of "Hearing Day".

 

But, on resumption of the hearing, the Magistrate will be invited to receive the new certificate as material which would be available at the trial that would follow any determination by him, should it be made, that the charges against the applicant should be brought to trial.

 

In other words, if the certificate would be admissible at a trial, the Magistrate may receive it in the committal proceedings for the purpose of demonstrating the DNA evidence that a jury will have before it at the trial, if a trial eventuates.  Such a trial cannot begin until more than 10 days after the current s.95A certificate has been supplied.

 

So it was not inevitable that no useful purpose could have been served by allowing the prosecution a brief adjournment to address deficiencies in the first attempt at a s.95A certificate. 

 

Mr Purnell has invited me to consider suggested defects in the new certificate.  These, he argues, mean that this certificate is not admissible at a trial.  This is not, I think, a convenient course.  The question before me is, in short, whether the discretionary decision to adjourn was infected with reviewable error.  If the new certificate does not comply with s.95A, that can be agitated before the Magistrate in an attempt to persuade him not to commit or, in the event that he does commit the case to trial, on a pre-trial application before a Judge of the District Court - the jurisdiction in which, in the event the case is committed, it will be tried.

 

As it is not shown that the prosecution had no reasonable prospect of using the adjournment to remedy deficiencies in its first attempt at a s.95A certificate, and the prosecutor indicated to the Magistrate an intention to try to do so during any adjournment, there was no miscarriage of the discretion to adjourn the proceedings for a short period for such a purpose.

 

The application must therefore be dismissed.

...

HIS HONOUR:  Now the question of costs arises.  I consider that the costs of the application ought to follow the event, with one exception.  That exception relates to the appearance before Mr Justice Chesterman on the 19th of December when his Honour reserved costs. 

 

The date might have been used for the final determination of the application, avoiding the necessity for a second appearance. 

 

That it was not used for that purpose is largely attributable to the fact that on 14th December Mr Reid in the office of the Director of Public Prosecutions wrote objecting to a final determination of the matter on 19th December.  The principal reason for doing so was the lack of availability of a transcript of the proceedings on the second day of the committal.  No transcript of the hearing on that day was included in the affidavit material in support of the application.  That is a perfectly understandable decision.  On the applicant's case, the second day had no significance.  As the case has been argued, on the respondent's case too, the second day has no significance.

 

So deferring the hearing to adduce evidence which, on both sides, was irrelevant is scarcely an efficient choice. 

 

Eventually, the Director's office resiled from the position that it would not accept that the hearing on the 19th could be used for final determination.  That was commendable.  Unfortunately, however, the decision was communicated so late that the applicant's counsel was unable to obtain a flight to be in Brisbane on the 19th. 

 

Mr Justice Chesterman made a separate order reserving the costs of the day.  I consider that the respondent Court not to have any costs of that day. 

 

There will be an order that the applicant pay the respondent's costs of and incidental to the application to be assessed except the costs reserved on the 19th of December 2006.

...

 

HIS HONOUR:  I order that the respondent pay the costs reserved by Mr Justice Chesterman on the 19th of December 2006.

...

Close

Editorial Notes

  • Published Case Name:

    Vines v Mulcahy & Gordon

  • Shortened Case Name:

    Vines v Mulcahy

  • MNC:

    [2007] QSC 6

  • Court:

    QSC

  • Judge(s):

    Byrne J

  • Date:

    08 Jan 2007

Litigation History

No Litigation History

Appeal Status

No Status