Directions Hearings :
Applications for leave to cross-examine at
Committal
A guide to compliance with the Justices Act & practice
directions
Road Map
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Compliance with the practice directions
Relevant provisions of the Justices Act
Second reading speech
Drafting informal and formal notices
MR grants clauses
Case examples – “substantial reasons”
Compliance with the practice directions
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Practice Direction No.12 of 2010
1.
Committal / Summary callover,14 - 21 days after 1st or 2nd mention (2-3 weeks)
Case conference {Practice Direction No.10 of 2010 [4]}
Full brief of evidence to be prepared, copied and delivered within 35 days of the
call over (5 weeks)
Committal hearing with cross examination by consent [4.1] – listed for committal
hearing no earlier than 49 days (7 weeks) [informal] notice
Prosecution refuse to consent to the committal hearing with cross examination –
listed for a committal mention no earlier than 49 days (7 weeks)
Committal mention – adjourn for application (directions hearing) no earlier than 21
days (3 weeks) ; and defence give [formal] notice within 7 days [S110B(3)(a)] ;
prosecution respond within 7 days [S110B(3)(b)] ; defence file an application
under S110B(7) & S83A (filed & served at least 2 days prior to the hearing) –
visual files [court docs; committals] / annexed practice direction
Directions Hearing
Successful – committal hearing (4 weeks, or earlier by consent)
Unsuccessful – FHU committal on the day [S110A] (have client attend)
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Committal with XXN by consent
Committal / Summary callover
Case conference
BOE (5 weeks)
Informal notice & response - successful
Committal with consent
(7 weeks CH XXN)
Best case : 7 - 12 weeks (2 - 3 months)
Committal with XXN by application
Committal callover
Case conference
BOE (5 weeks)
Informal notice & response –
unsuccessful
Committal mention (7 weeks)
Directions hearing (3 weeks)
Committal hearing with XXN
(4 weeks)
Best case : 19 weeks
(almost 5 months)
Advice :
6 months from 1st mention
Justices Act 1886 (Qld)
• Relevant provisions
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S83A – Direction Hearing : (5AA) (a) direction for witness to attend to give oral evidence or (b) to
be made available for cross examination.
S110A – Tendered statements in lieu of oral testimony in committal proceedings : (5)
prosecution and defence may agree to witness being present for XXN [mirrored in practice
direction 4.1]
S110B – Special provisions applying to a direction under s83A(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.
(3) an application for a direction may only be made if (a) the defence have communicated to the
prosecution (i) the name of the witness who is the subject of the application (ii) the general issues
relevant to the making of the application (e.g. identification evidence, expert opinion evidence) (iii)
the reasons to be relied on to justify the calling of the witness to give oral evidence (iv) a time for
the prosecution to respond [formal notice – 7 days].
Justices Act 1886 (Qld)
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Relevant provisions (cont)
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Example of communication in accordance with 110B(3)(a) :
1. Arresting Officer Detective Sergeant Thomas
General issues : identification of the defendant ; arrest of, all dealings with, and walk through of
the scene at X with the defendant on X; dealings with witness X.
The reasons to be relied on to justify the calling of Detective Sergeant Thomas to give oral
evidence : The admissibility of evidence of questioning of the defendant, particularly regarding his
participation in the walk-through on X. Also to explain the obtaining of identification evidence from
other witnesses.
2. DNA Scientist Professor Shedder
General issues : expert opinion evidence.
The reasons to be relied on to justify the calling of Professor Shedder to give oral evidence :
Clarification of findings in relation to the defendant’s DNA profile and references to incomplete
DNA profiles, mixed DNA profiles, and conclusions that the defendant cannot be excluded as a
possible contributor to mixed DNA profiles.
Justices Act 1886 (Qld)
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Relevant provisions (cont)
S110B(3)(c) must file with the application : a copy of the defence
communication and the prosecution’s response (if it has been received) [at
least 2 days before the hearing]
S110B(6) a magistrate must give reasons for the magistrate’s decision at a
direction hearing about an application for a direction under section
83A(5AA).
S110C – Limitation on cross-examination : (2) however the justices may
allow cross-examination that is otherwise not permitted if the justices are
satisfied there are substantial reasons why, in the interests of justice, the
cross-examination should be allowed.(3) The prosecution may re-examine a
witness who is cross-examined.
(Power to broaden scope of XXN with leave)
Second reading speech
Civil & Criminal Jurisdiction Reform & Modernisation Amendment Bill
The recent reforms to the committals process did not abolish committals but established a test
by which cross-examination would be permitted in appropriate cases. Support for this
proposition can be found in the Second Reading of the Bill:
Another significant and long overdue aspect of reform relates to the committal process. For
more than a decade there has been a steady trend towards reform of committals around
Australia and overseas. Queensland and the Northern Territory are the only jurisdictions that
still allow unrestricted cross-examination of witnesses. Mr Moynihan found that most of the
historical reasons for committals are no longer relevant. He also found that in a large number
of cases agreement to proceed by a paper committal occurs at the last minute. The costs of
this are borne by many people, including witnesses and victims, not just the court and
defendants. Mr Moynihan recognised that committal hearings are sometimes justified.
When used appropriately they can help to clarify issues, refine charges, negotiate pleas
and identify weak cases. However, unfettered access in all cases cannot be sustained
because it is inefficient and ineffective. It is not the government’s intention to abolish
committals, as has occurred in some other Australian jurisdictions. On the contrary, the
reforms in this bill seek to make them more useful and productive. The amendments
restrict the calling and cross-examination of prosecution witnesses unless the prosecution
consents or the magistrate is satisfied there are substantial reasons in the interests of justice
why such witnesses should be called. This will ensure that witnesses cannot be called and
cross-examined on a general ‘fishing expedition’ by the defence. Requiring justification for
committal hearings will ensure that parties turn their minds to issues at an early stage.
[Emphasis added.]
Informal & Formal Notices
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Informal notice (e.g.)
We act for Mr X who has been charged with Supplying Dangerous Drugs with a
circumstance of aggravation (to a person under the age of 18).
This matter has been listed for further committal mention in the Magistrates Court at
Brisbane on 31st July 2012. The reason for the further adjournment is because your office
has requested further information in relation to the witnesses we require for cross
examination.
At this stage, no formal application has been made to cross examine witnesses at a
committal hearing. In accordance with Practice Direction 12 of 2010 we are therefore
seeking your consent to the cross-examination of the witnesses listed below (see 4.1 of
Practice Direction 12 of 2010).
If, however, you advise us in writing that our request to cross-examine is opposed, then on
31st July 2012 at the next committal mention we will indicate to the court that a formal
application is to be made and we will seek a directions hearing (see 7 of Practice Direction
12 of 2010). Once a directions hearing has been allocated we will then serve our notice in
accordance with section 110B(3)(a) of the Justices Act 1886, within 7 days (see 7.2 of
Practice Direction 12 of 2010).
At this stage however, we are seeking your consent to the following 2 witnesses giving oral
evidence in the specific areas as outlined below :
Informal & Formal Notices
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Informal notice (e.g.) (cont)
1. Arresting Officer Detective Sergeant Thomas
General issues : identification of the defendant ; arrest of, all dealings with, and walk through of
the scene at X with the defendant on X; dealings with witness X.
The reasons to be relied on to justify the calling of Detective Sergeant Thomas to give oral
evidence : The admissibility of evidence of questioning of the defendant, particularly regarding his
participation in the walk-through on X. Also to explain the obtaining of identification evidence from
other witnesses.
2. DNA Scientist Professor Shedder
General issues : expert opinion evidence.
The reasons to be relied on to justify the calling of Professor Shedder to give oral evidence :
Clarification of findings in relation to the defendant’s DNA profile and references to incomplete
DNA profiles, mixed DNA profiles, and conclusions that the defendant cannot be excluded as a
possible contributor to mixed DNA profiles.
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If opposed, list for direction hearing (at least 21 days)
Serve formal notice within 7 days of listing the matter for a direction hearing.
Informal & Formal Notices
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Formal notice
(make it clear it’s a formal notice)
• Formal Notice to Examine Witnesses in accordance with 110B(3)(a) of the
Justices Act
A. Introduction and Merits for seeking cross-examination.
• B. Chronological summary.
• C. Witnesses required for cross-examination.
1.
Name of witness
General issues
The reasons to be relied on to justify the calling of the witness to give oral
evidence
• D. The lines of questioning.
• E. Reasons to allow cross-examination.
(recite the second reading speech)
Remember : this will need to be filed with the application.
MR Grants Clauses
• Solicitor only
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MR1 – indictable offence to be committed up to higher court. Registry or FHU committal.
Conferencing, negotiation. $549.
MR2 – further preparation & appearance to make formal application to XXN or disclosure
direction order. $432 (half day). $662 (full day – must specify).
MR3 – additional appearance for day 1 of committal hearing with XXN or summary trial. $841.
Total $2,052.
MR6 – negotiated summary plea or additional days of committal hearing or summary trial.
$657.
• Solicitor & Counsel
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MR1 – as above. Solicitor only $549.
MR1A – engage counsel for negotiations, up to & including agreement to XXN or to determine
than an application for leave to XXN should be made. Barrister only $342.
MR4 - further preparation & appearance to make formal application to XXN or disclosure
direction order. Solicitor $788 (as per MR2 + conference, full day). Barrister $890.
MR5 – additional appearance for day 1 of committal hearing with XXN. Solicitor $795 (as per
MR3). Barrister $890.
Total Solicitor $2,132. Total Barrister $2,122.
MR7 - negotiated summary plea or additional days of committal hearing or summary trial.
Solicitor $460. Barrister $562.
Counsel at Committal for serious charges
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Grants Handbook Guidelines for Counsel
A public interest or sufficient complexity to warrant representation by counsel may
arise if Legal Aid Queensland consider one or more of the following factors are
present:
(i) The gravity of the charge(s) requires counsel;
(ii) The proper conduct of the case requires substantial cross-examination of
numerous witnesses;
(iii) Excessive resources have been utilised by the Crown in the prosecution of the
matter;
(iv) There are numerous co-accused represented by different solicitors;
(v) There are children or special witnesses to be cross examined;
(vi) The admissibility of evidence is contested or matters of law will require significant
and detailed legal argument;
(vii) Expert evidence is relied upon to support the prosecution or defence case and
significant examination or cross examination of witnesses will be required
The Big Picture
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Full disclosure BOE
Identify issues needing clarification / areas XXN –
Issues apparent on the face of the brief (easier to identify)
Issues based on instructions from client – tactical decision about whether or not to
show your hand – seek advice of & brief Counsel
Informal notice - as per practice direction [4.1]
Clients instructions - visual files
List for directions hearing
Formal notice - as per practice direction (within 7 days of matter listed for
directions hearing)
Directions hearing : be prepared to deviate - might be other issues you haven't
considered (e.g. timing of fresh complaint) - take cues from the bench
Prosecution likely to make concessions on the day - arguments have merit,
consent to certain witnesses (it's happened to me twice - both times the
prosecution consented, during the hearing, to the complainant being made
available for XXN on certain issues)
Cases – substantial reasons
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Police v Wiese 06/03/2012 Judge Butler SC, Chief Magistrate
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Substantial reasons
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Charge of rape – XXN of the complainant’s consumption of any medication or drugs (prescription
or otherwise) on the night before / morning of the alleged rape & any effect upon her ; details of
any conversations in relation to the making of a fresh complaint
[no evidence on the Crown case of any drug use on the night / morning of the alleged rape.
However, due to a combination of factors (listed below) substantial reasons did exist to allow
cross-examination on this issue : the complainant has a recent and relevant criminal history of
drug use; detailed instructions from the applicant about the complainant's illicit drug use on the
night prior to and early hours of the morning of the alleged rape; the complainant's medical
records from her hospital admission in the days after the alleged rape, which indicated current
prescription medication comprising MS Contin and Tramadol; and there was no mention in the
complainant's statement whatsoever of drug or alcohol consumption on the night before / morning
of the alleged rape].
Paragraph 45 : “Ordinarily the mere absence of a denial of such matters would not justify an order
for cross-examination. However, given that the complainant has a history of illicit drug use and
had been prescribed opioid analgesic medication at the time, the real possibility is raised that she
had ingested drugs that night”.
Cases – substantial reasons
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Two post-Moynihan cases (both involving rape complaints) were helpful in arguing this point :
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PJK v Police [2011] QMC 043 Magistrate Pearson √ - specifically in relation to the prescription drug Tramadol
(see paragraphs 30 & 32 - "In my view the issue of the ingestion of the drug Tramadol has not been sufficiently
covered in the police statements and the applicant would be denied a fair trial if the first opportunity to address
this issue was at trial"); also see paragraphs 27 & 28 in relation to the taking of addendum statements prior to
the directions hearing.
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Police v KA [2011] QMC 039 Magistrate Callaghan CJ X - in this case the complainant had given a very
detailed account in her statement of what she had consumed that night and its effect upon her. Crossexamination on the issue of intoxication was therefore refused (see paragraphs 23 & 24). I was able to
distinguish this case as here for the applicant Wiese the complainant's statement is completely silent on this
issue.
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addendum statements : why oral evidence is preferable
it is the method most likely to get at the truth.
It allows relevant clarification and follow-up immediately rather than by a further round of
addendum statements.
It ensures that both the question and answer will be recorded.
It minimises the risk of collusion between witnesses.
It minimises the risk of a witness tailoring his or her evidence.
Cases – substantial reasons
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Police v Singh 13/06/2012 Judge Butler SC, Chief Magistrate
Substantial reasons
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Charge of rape – XXN sought on complainant’s recollection of her dealings with the accused prior
to the alleged offence, her level of intoxication, and how the latter affected her.
Contrary accounts given by the complainant – sexual conduct. “substantial deviations” between
what the complainant alleged in her earlier accounts and what appears in her written statement.
[doubt initially about whether alleging penetration; essential to the charge of rape].
BAC at 2am 0.149%.
“Credit & reliability of the complainant are crucial to the issue of consent”.
Paragraphs 48 to 50 :
“In my view this is not a case where the likelihood of the complainant being so discredited upon
cross-examination as to result in the discharge of the defendant would establish substantial
reasons for cross-examination.
Nonetheless, I am satisfied the applicant has established substantial reasons for crossexamination of the complainant. The applicant is entitled, in nay view, to test whether the
complainant will adhere to the account given in her written statement when confronted with her
arguably inconsistent earlier statements. This will inform the applicant of the version of events he
has to meet at trial. The applicant is also entitled to explore any explanation the complainant may
give for the apparent inconsistencies as this may reflect on her credibility and reliability on the
crucial issues of consent and penetration.
I will also allow cross-examination in respect of alcohol consumption. The accuracy of the
complainant’s initial accounts to police and others may have been affected by her level of
intoxication”.
Cases – substantial reasons
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Police v HJW [2011] QMC 19 Judge Butler SC, Chief Magistrate
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Substantial reasons √
Charge of indecent dealing with a child under 12 – alleged offence occurred over a decade ago
Paragraph 24 (principles):
“In referring to the New South Wales cases it must be borne in mind that the Queensland legislation only
establishes the one test, that of “substantial reasons”, which is a less onerous test than the test of “special
reasons” which applies in New South Wales to offences involving violence”.
Paragraph 25 (principles):
“The objective of facilitating a fair trial is a fundamental consideration in determining whether cross-examination
should be allowed. The High Court in Burton v The Queen explained the importance of committal proceedings in
the protection which the criminal process gives to an accused person”.
XXN on reason for late complainant
X
explained in her statement
XXN on discussion with sister (complainant – other proceedings)
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ever discussed? “no, not really”. Not conclusive – what does ‘not really’ mean?
XXN on recollection of layout of the house
X
explained in her statement / clarified in conference / not disputed
XXN on particularity
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just started karate lessons – no reason has been given for how the complainant relates the karate lessons to this
particular alleged offending; relevant to the reliability of her recollection of the incident
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Cases – substantial reasons
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Police v DBW [2011] QMC 4 Judge Butler SC, Chief Magistrate
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Substantial reasons √
Charge of fraud - $1.1m from NAB
The prosecution case against the applicant alleges he fraudulently induced the NAB to pay money to the company
(to which he was the director & proprietor) under the Debtor Finance Facility in circumstances where the bank had
no legal obligation to do so.
Sought to XXN 6 of 23 witnesses
Paragraph 25 :
“It has been said that each case will depend on its own facts and circumstances. In my opinion, there are
particular circumstances arising in this case which bring to the fore the need to facilitate a fair trial. Crossexamination is necessary to obtain a proper understanding of the nature of the prosecution case. That of
itself is capable of constituting a substantial reason in the interests of justice. Cross-examination may also avert
the need to hold a Basha inquiry before trial”.
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Police v Cain [2011] QMC 47 Judge Butler SC, Chief Magistrate
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Substantial reasons √
Charges of trafficking in cannabis, 3 x supply
XXN on number of supplies to each witness (3 witnesses) – to obtain a proper understanding of the Crown case &
assist submission that the conduct did not amount to trafficking
W1 bought from the applicant “not more than 30 times” – general in nature, fails to specify any particular
occasions
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W2 bought from the applicant 10-15 times “from the applicant’s house”
X
W3 bought from the applicant on 2 specific occasions in April “from the applicant’s house” X
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Cases – substantial reasons
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Police v Zapala [2011] QMC 48 Judge Butler SC, Chief Magistrate
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Substantial reasons √
Charge of GBH – XXN sought of 2 eyewitness accounts of the alleged assault
Issue – identification – neither witness identify the applicant from a photo board
Confession made by the applicant – argument & chasing the complainant & hitting him before he fell to the ground
(hitting the complainant - might have been referring to an earlier incident)
W1 – saw the complainant being tackled to the ground causing him to hit his head
W2 – didn’t see what caused the complainant to fall, but saw him fall to the ground
Neither W1 nor W2 saw the complainant being punched ; neither ID applicant
XXN granted – observations of the alleged application of force & the fall & injury suffered by the complainant
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Police v ED [2011] QMC 3 Magistrate Callaghan CJ
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Substantial reasons √
Charges of unlawful wounding, AOBH whilst armed, attempted robbery.
Issue – identification – street robbery, armed with a screw driver, silver Honda Civic.
W1 – saw a male exit silver Honda Civic (car rego no.573 GZF) and throw item in garden bed – screw driver.
XXX granted – complainant 1. The length of time under which the complainant had the offender under his
observation; 2. The lighting in the area in which the complainant had the offender under his observation; 3. His
state of intoxication at the time of the incident; 4. His state of intoxication at the time of the viewing of the photo
board; 5. The effect upon him of the statements made to him by police immediately before he was shown the
photo board; 6. What was meant by him in the statements he made upon viewing the photo board (“he looks
familiar… number 8… I believe he is the guy who stabbed me”.
Cases – substantial reasons
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Police v ED [2011] QMC 3 (cont).
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W1 1. The distance from which he observed the vehicle on his first sighting of it; 2. The lighting in the area and on
the vehicle when he first sighted it; 3. The times under which he had the driver of that vehicle under his
observation; 4. The time between flicking something into the garden and getting back into the vehicle; 5. The
number of people in the area at the time; 6. The physical attributes of the driver of the vehicle which lead him to
describe the male as Maori or of Pacific Islander appearance (applicant was Asian).
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Police v CM [2011] QMC 14 Magistrate Callaghan CJ
Substantial reasons √
Charges of sexual assault, 4 x rape, complainant is the applicant’s former de facto partner & mother of his two
children. Alleged applicant came around and wouldn’t leave.
XXN complainant granted – 1. Why the Complainant allowed the Defendant to stay overnight when there was a
Protection Order in place prohibiting him from having contact with her; 2. What occurred over the hours
subsequent to the alleged rapes when it seems the Complainant had the opportunity to leave the residence; 3.
The reason for the failure by her to mention to the police in her 000 call that she had been raped; 4. The reason for
the failure by her to mention to the witness WS in her call to her that she had been raped; 5. The alleged motive of
the Complainant to make a false complaint of rape as the defendant was responsible for her children being taken
from her and her estrangement from her family; 6. The contents of her text message to the defendant of 18
December 2010 in the context of their relationship.
XXN – nurse, conducted internal examination – application refused.
Challenge expertise – 590AA pre-trial hearing. X
Cases – substantial reasons
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Police v Glenn 18/10/2011 Magistrate Warfield
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Substantial reasons
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Charge of murder – allegedly stabbed prostitute, confession did it but didn’t know why
Issue – mental health defence, diminished responsibility (not the focus of the police investigation)
XXN sought of 16 / 108 witnesses – observations of the applicant’s demeanour & conversations
with the applicant
XXN granted
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Police v Passfield 13/04/2012 Magistrate Stjernqvist
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Substantial reasons
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Charges of trespass, enter premises with intent, sexual assault (14 complainants)
The applicant was allegedly a ‘serial door-knocker’ at the accommodation of female recruits at the
RAAF base, in the hope of sexual activity, usually on the pretext that he had locked himself out.
Methodical behaviour, working his way down the corridor; method he claimed had earned him
“heaps of roots”.
3 of 14 complainants alleged non-consensual sexual acts.
XXN granted – factual situation including the manner of entry into the room/s, matters relating to
issues of consent and possible mistake, clarification of similar fact evidence, the manner in which
complaints were made including participation in and content of group discussion prior to the
making of the complaints including any possible collusion or influence
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