In 2010 the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act amended the Justices Act by removing cross examination as a matter of right in committal proceedings in Queensland.

Driven by the Moynihan Report[1], which called for a ‘more focused, streamlined effective committal process’, Queensland adopted the New South Wales system which requires a multiple step process to be completed before a witness may be cross examined in committal proceedings.

This process is initiated by the defence providing to the prosecution a ‘defence communication’ pursuant to section 110B(3)(a) of the Justices Act, which outlines the witness sought to be questioned, the general topics of questioning and the reasons to be relied on for that questioning. The prosecution then have the opportunity to consent to the questioning of the identified witness and the topics outlined. In the event of a refusal an application can then be made to the Magistrates Court to determine whether the witness can be cross examined and on what topics may form part of that examination.

Anecdotally, most practitioners report the starting position of the Prosecution is to refuse any request to cross examine witnesses. This can vary depending on the prosecuting body but, generally speaking, I have found that Police Prosecutions (who often retain carriage of indictable offences until committal in regional areas) are less inclined to consent than their DPP counterparts.

Since the roll out of these reforms the consistent approach from the Prosecution has been to address, where possible, the identified topics of cross examination by obtaining an addendum statement from the relevant witness. By taking this route the Prosecution figure that any ambiguity can be resolved without the need for the witness to be cross examined.

For those on the left hand side of the bar table this has led to much exasperation. Experienced practitioners are aware that the silences in the original statement may not be a simple case of inattention. Those silences may betray weaknesses in the prosecution case, inconsistencies between witnesses, or matters which may affect the credit of the statement writer. To seek an addendum to address these problems is akin to allowing the Prosecution to have a second bite at the evidence gathering cherry.

For these reasons some practitioners believe there is little utility in applying to cross examine witnesses. To do so may disclose your case theory or even subvert your client’s right to silence.

The problem with this approach is that it inevitably opens the defendant up to surprise at trial when the areas which required further scrutiny are finally put to a witness. Further, the more esoteric benefits derived from cross examination, such as an assessment of the witness’ demeanor and candour, are also foregone.

The middle ground regularly adopted by the defence is to request, on the face of the ‘defence communication’, that the contents of the communication not be disclosed to any prosecution witness. In addition and in response to the common practice outlined above, a request is often made specifically asking that no further addendum statement be obtained.

In the recent Supreme Court decision of Agnew v Thacker and Commissioner of Police[2]these requests were put under the microscope. Agnew had applied to cross examine witnesses and his lawyers had requested that the contents of the defence communication not be disclosed to prosecution witnesses and that no further statements be obtained. The Police went and took them anyway and, ultimately, the application to cross examine witnesses was refused.

Holmes CJ, in an overarching discussion about the lack of ownership in witnesses, found that “there was no legal basis for the applicant to place limits on the use of the information”.[3] With one fell swoop the Prosecution penchant for addendum statements has been validated. The Court found there was nothing inherently wrong with the provision of addendum statements in these circumstances and suggested the disclosure of a defence via a defence communication was similar to the disclosure required when relying on alibi or expert evidence.[4]

While it would be improper for a prosecutor to forewarn a witness about what evidence will be challenged under cross examination during a trial, it now seems permissible to allow for the same information to be provided to the witness prior to committal in the interests of ‘streamlining’ the committal process. This is a concerning development.

Where does that leave the defence? The starting point is that we must assume that the Prosecution will disclose the contents of any defence communication with Crown witnesses. That means that extreme care must be taken in the drafting of the defence communication. Should the communication disclose too much detail of the proposed defence there is a real risk that the witness, who previously may have had cause to doubt their recollection when challenged, may tailor their evidence to address the concerns raised in the communication.

Moving forward greater forensic attention will required when drafting the defence communication. It will be imperative to explain the potential impact on a client’s trial prospects should they pursue cross examination at committal. On a practical level it may be beneficial to craft the communication with recourse only to the prosecution evidence, rather than running the risk that your client’s instructions percolate into and inform the communication. Finally, there is great merit in either engaging or at least consulting with your likely trial counsel prior to the provision of the communication. The forensic decisions surrounding this communication will impact how the trial is conducted and having counsel’s input at this early juncture will ensure consistency of tactical approach.

[1] Titled ‘Review of the civil and criminal justice system in Queensland’

[2] [2019] QSC 161

[3] Ibid, [41]

[4] Ibid, [34]