Queensland Judgments


Authorised Reports & Unreported Judgments

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Atherton & Anor v Eaton & Ors

Unreported Citation: [2019] QSC 66

Here, the Chief Justice exercised the discretion to set aside the decision to commit the applicant and the decision to refuse cross-examine the complainants. The applicants had not consented to the committal and there had been a significant issue with photo-board identification evidence in relation to one of the applicants. Her Honour found that the first and third respondents (each being magistrates) refusal to grant the applicants leave to cross-examine the complainants particularly in light of the dubious identification evidence, and decision to commit the applicants without considering the evidence was an improper exercise of power.

Holmes CJ

22 March 2019

The applicants had been charged with entering a residence and assaulting the occupants. [4]. Each of the first and third respondents are magistrates. The applicants sought to cross-examine the occupants and their daughter regarding credibility in relation to their accounts of the events, arguing that their accounts were infected by differences and inconsistencies. Their application was denied by the first respondent and the third respondent committed them to trial.

The applicants sought orders pursuant to s 30 of the Judicial Review Act 1991 with a view to setting aside those decisions.

The application for cross examination and the quality of the identification evidence

The basis for the applicants’ application to the first respondent for a direction under s 83A(5AA) of the Justices Act 1988 concerning the witnesses’ accounts of the events was twofold: namely that alleged discrepancies in the three accounts existed; [9] and that one applicant had been identified by a complainant from a photo on a Facebook page prior to viewing a police photo-board. [17]. That was arguably contentious because while the applicant’s DNA had been found in the balaclava, so too had the DNA from others.  It was submitted that that might be a basis for challenging the admission of the DNA evidence against him, according more significance to the Facebook identification. [10].

In relation to those matters, the first respondent refused to allow cross-examination, noting that whilst the applicants were entitled to be apprised of the case against them, the witnesses had in fact provided as much detail as they could recall. [11].  In dismissing the application, he observed:

“… most barristers would carefully take witnesses through their statements to make sure – their evidence to make sure that the jury, which is ultimately the arbiter of fact, properly understands the nature of case against each defendant… – an experienced trial judge would be expected to give directions to a jury, to properly instruct them in relation to issues that arise during the course of the hearing which might relate to what I called identification issues, which might relate to versions being given at the time.” [11].

Put simply, he was not of the view that any substantial reason existed in the interests of justice for cross-examination. In his view, the prosecution case provided an adequate understanding of the case on which the defendants could be convicted. [12].

The committal

Subsequently, the applicants did not consent to being committed, nor make any submissions in relation to the evidence. The third respondent proceeded to commit the applicants. Her Honour found that it was quite clear the third respondent had plainly not considered the evidence pursuant to ss 104 and 108 of the Justices Act prior to doing so. [13].  She regarded that lapse as amounting to a breach of ss 20(2)(b) and (c) of the Judicial Review Act, in that either the procedures required by law to be observed in relation to the making of the decision were not observed; or possibly, the decision lacked jurisdiction. [14].

The refusal to allow cross-examination

Identifying the question of identification as an “important” one, since none of the witnesses claimed to have had the benefit of clearly viewing the male assailant during the incident, [17] her Honour formed the view that the first respondent had erred in failing to consider whether cross-examination on this issue had the potential to “cast real doubt on the correctness of the photo-board identification, or at least create a basis for the exclusion of that evidence at trial; because that might well amount to a substantial reason for allowing cross-examination”. She further held that his Honour’s references to the role of counsel and directions being given at trial “did not address the real question at all”.  In the circumstances, she took the view that the ground of improper exercise of power (s 20(2)(e) of the Judicial Review Act) had been established.

Exercise of discretion

Commenting that the standard of the identification was “plainly very dubious indeed”, and noting that in the event the committing magistrate had considered the evidence for the purpose of committing and the witnesses had been cross-examined, it was not inconceivable that the identification evidence might have been demonstrated to be worthless, [23] her Honour found that the circumstances were exceptional and justified interference in the committal process. [24].  In taking that view she carefully noted that the availability of a Basha enquiry to remedy a refusal of cross-examination was unsatisfactory in terms of solving the issue, particularly since it has the effect of transferring a task statutorily allocated to the Magistrates Court to the higher courts.

In disposing of the matter, she ordered that, in relation to one applicant, the decisions to commit and to refuse cross-examination be remitted for further consideration according to law. [25]. Given the evidence concerning the other applicant showed a strong prima facie case against her, she was not given the benefit of similar orders.

A de Jersey