The Queen v W[2009] QDC 40

DISTRICT COURT OF QUEENSLAND

1. HIS HONOUR:  This is an application on behalf of the applicant W seeking what's known as a Basha Inquiry in respect of the following witnesses:  Plain-Clothes Senior Constable Melissa De Sloovere, Detective Sergeant James O'Keefe, Constable Donald Roseby, L (complainant), MT, NO and CB.
2. The background to this application is set out in rather stark and startling detail in the transcript of the proceedings in the Childrens Court at Doomadgee dated 16 January 2008 before a then acting learned Magistrate whom, I understand from information from the Bar table, may have subsequently been appointed to a permanent position.
3. There's been a further clarification of the circumstances contained in evidence contained in the affidavit of David Lionel Ritchie, the solicitor who appeared at what eventually became a full hand up committal under section 110A of the Justices Act.
4. The reasons that the matter proceeded to a full hand up committal should be canvassed in some little detail because they appear to me, in my very firm view, to reflect the learned acting Magistrate's significant misunderstanding of his role as a judicial officer in committal proceedings, and a consequent failure to appreciate both the law and the role of the District Court in criminal proceedings.
5. In very brief outline, what occurred was that the defendant was before the Childrens Court at Doomadgee in respect of two separate sexual assault charges.  Subsequently, that defendant has only been indicted on a single charge relating to the complainant, L.
6. The learned acting Magistrate made a number of comments on the record which, to put it at its politest, I find disturbing.  The first was after Mr Ritchie had indicated that he - either Mr Ritchie or, perhaps, the Prosecutor; it's hard to know - was expecting "a committal with cross on both matters".
7. The learned acting Magistrate said, "Look, I'm anxious to get out of this jurisdiction."  He then - that is, the learned acting Magistrate - went on, according to the transcript - although it's unclear whether it was the Magistrate who said this or someone else - but someone said, "Now, I’m submitting to you it's a prima facie case."
8. It appears that that may have been the Magistrate, but possibly the Prosecutor.
9. The Magistrate then said further on "but would it not be more likely that if you were to raise that prospect with the complainant at the committal it would galvanise her intention against your client at trial which is the important aspect of it."
10. This appears, on the face of it, to be very clearly a Magistrate seeking to persuade a defence legal representative not to proceed with a contested committal involving cross-examination in circumstances where, to put it at its bluntest, any competent legal representative should have realised that it was essential, both in accordance with his client's instructions and with the objective features of the case, that a committal involving cross-examination of all relevant witnesses was a fundamental cornerstone of a competently conducted trial in the District Court.
11. The learned Acting Magistrate then went on to offer further (in my view inaccurate and unprofessional) advice stating "I don't want you to be in the position where you eliminated possible defences … you run the very real risk of eliminating, extinguishing or tempering any defence that you might have, particularly with respect to the [indistinct]."
12. The learned Acting Magistrate went on to say that, in effect, cross-examination at committal might alert witnesses to a conflict.
13. The learned Acting Magistrate then, at page 1.4 of the transcript, went on to say after saying on the record "I'll either adjourn it for hearing or I'll commit it today" and then said "I'm more inclined not to give you a hearing date or committal hearing date, simply commit without any cross-examination and you can have a Basha inquiry if need be in the District Court and that'll be conducted by counsel … you'll have the counsel who prepares and is going to conduct the defence of the child in the Children's Court of Queensland conducting the Basha inquiry.  The Basha inquiry is in effect a committal before a District Court Judge.  If the Basha inquiry is conducted before a District Court Judge you'll have the benefit of a Judge making the ruling.  You'll have the benefit of counsel who will run the jury trial conducting the committal and you've got nothing to lose on that basis.  I'm more inclined to do that and I'm keen to do that and I can only do it with your consent."
14. At paragraph 1.5 the learned Acting Magistrate said, "I know that you're not aware of Basha inquiries.  I don't want to be rude to you or embarrass you.  That is a far more likely scenario - is far more effective in the circumstances than you trying to run a committal with cross-examination in Normanton," and the Magistrate went on to say "I want this matter committed without cross-examination" and again referred to the availability of a Basha inquiry in the District Court.
15. The basis on which a Court can order a Basha inquiry is, of course, to ensure the fair trial of charges to be heard before it (R v. Basha [1989] 39 A Crim R 337, 338).
16. However, as Mr Anderson has been at pains to point out, a Basha inquiry is by no means an automatically granted procedure in the District Court, and it certainly cannot be relied on, as the Court of Appeal in New South Wales indicated in the decision in Basha itself, to give the accused the opportunity to produce minor conflicts between the witness for use upon the issue of credit at the trial (R v. Basha p.340).
17. The criminal justice system in Queensland, subject to any changes that may arise from the current Moynihan inquiry, is a two step process.  The first step in that process for an indictable offence occurs before a Magistrate.  It's called a committal, and for reasons of convenience, Justices Act section 110A enabled committal proceedings to proceed with the evidence of all or some witnesses being "handed up" by way of written statements and, with the defendant's consent and instructions, the matter could proceed with no examination-in-chief or cross-examination of any witnesses (known popularly as a "full hand up committal").
18. Alternatively, as is frequently the case, all or some of the prosecution witnesses have their statements "handed up", they are then cross-examined by defence legal representatives and, on some occasions, of course, a witness may be required to give full evidence.
19. The situation of a complainant in a sex offence is classically the situation where competent legal representation would not necessarily mandate, but usually indicate a strong reason for having the evidence-in-chief given in full, and then a comprehensive cross-examination of that complainant to ensure that the defendant can be fully and appropriately advised as to the strength of the case against him or her.
20. What effectively occurred in this case is that the legal representative for W who, from my reading of the case, appeared perhaps not as confident in his position as perhaps he should be, was effectively pushed by the learned Acting Magistrate into a position of accepting a full hand up committal of his client, contrary to his client's instructions, rather than, as I believe he clearly should have done, insisting that the matter be set for an argued committal in which cross-examination was conducted of all relevant witnesses, subject to the usual forensic considerations about which witnesses and what aspects of their evidence required cross-examination.
21. The assertion by the learned Acting Magistrate that this Court, i.e. the District Court, conducts Basha inquiries by way of, in effect, a "fall back committal proceeding" is a complete misconstruing of his role as a judicial officer presiding over the administrative proceedings of committals.  Of course, the role of this Court is to grant an order for a Basha inquiry where it is necessary for the fair trial of the defendant, but it does not grant such applications as an automatic order and is required, as Mr Anderson has very properly pointed out to me, only in those circumstances where the defendant's fair trial is at risk if the Basha inquiry were not conducted.
22. This is therefore a situation where, in my view, it is inevitable that an order should be made, but I want to make it very clear it's not a situation where it should have had to have been made, because the forensic goals which are sought, and properly sought, through cross-examination of the prosecution witnesses should have been achieved and would have been achieved with the cooperation and assistance of the learned Acting Magistrate at the Magistrates Court level.  That's the appropriate and proper function of committals in our system as it currently operates and to duck shove (to put it very bluntly) that responsibility from the Magistrates Court to the District Court is a complete failure to understand the appropriate role of both the Magistrates Court committal proceedings and the Magistrate's role, vis-à-vis the role of the District Court.
23. In all of the circumstances then, I grant the application for a Basha inquiry and order that the witnesses Melissa De Sloovere, James O'Keefe, Donald Roseby, L, MT, NO and CB be made available for cross-examination by way of voir dire in the District Court on a date to be fixed.