The Queen v B (No. 2)[2010] QDC 417

DISTRICT COURT OF QUEENSLAND

1. [1]
   In a judgment delivered on 23 June 2010, I directed the parties "to refine the issues, identify the witnesses required to attend the hearing and to determine the extent of the documentation required to be produced at the hearing, before applying for a date for the conduct of a ‘Basha’ proceeding in a further pre-trial hearing."

The Application

2. [2]
   The parties have been unable to agree on the selection of witnesses to give evidence at that proceeding and I have been asked to give directions to resolve what has become an impasse between them.

3. [3]
   It view of the nature of the disagreement between the parties it is necessary to resort to an analysis of the rationale for a committal proceeding and the nature and scope of the proceeding that has become known as a ‘Basha’ inquiry or hearing.

A committal proceeding

4. [4]
   The purpose of a committal proceeding is to require the prosecution to adduce sufficient evidence before a magistrate that is capable of establishing a prima facie case against an accused on the charges made against him or her.

5. [5]
   Section 104 of the Justices Act 1886 ("Justices Act") provides for proceedings upon an examination of witnesses in relation to an indictable offence. So far as is relevant, the section provides as follows:

"104 Proceedings upon an examination of witnesses in relation to an indictable offence

1. (1)
   …..

1. (2)
   When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices … the evidence is sufficient to put the defendant upon trial for an indictable offence, then the justices … shall …

1. (a)
   ……

1. (b)
   ……

1. (3)
   ……

1. (4)
   If the defendant desires to offer evidence with respect to the charge the subject of the examination, the justices shall hear and receive all admissible evidence tendered on behalf of the defendant which tends to show whether or not the defendant is guilty of the offence with which the defendant is charged.

1. (5)
   ……"

6. [6]
   In Kennedy Allen’s venerable publication on the Justices Act (at page 259), the author refers to the committal proceeding as a “’preliminary’ enquiry [whether there be sufficient ground to commit the prisoner for trial]” and observes that the examination of witnesses is not a trial. The author refers to the committal proceeding as being “precisely of the same nature as was the time-honoured proceeding before the grand jury (abolished in the year 1933), except that they heard evidence only on the part of the prosecution.”

7. [7]
   The author continues (at page 259-260) in the following terms:

“The duty of a magistrate on hearing a complaint for an indictable offence is one which is exercised in favour of defendants. It is an investigation on their behalf relating to the charge against them in order to satisfy a bench of magistrates that there is something for a higher court to decide. It is not any determination or decision on the case itself that the magistrates have to give, except, it may be, when they discharge the defendants on the ground that there is no case. All that they really do is to hear the prosecutor’s case, to hear anything that the defendant chooses to urge on his own behalf, and then to say whether in their opinion there is a case for a higher court to determine. Their only duty [touching the accused], once they determine there is a case to go to the higher court, is to take such steps as will ensure the attendance of the defendant at the higher court, either committing him to gaol to await his trial or admitting him to bail.”

8. [8]
   In other words, the author, so far as is relevant, was writing that the object of the preliminary enquiry (that is, the committal proceeding) is to determine whether a prima facie case has been established.

9. [9]
   Section 108 of the Justices Act provides the procedure upon a consideration of all the evidence and provides for the committal of the defendant for trial for an indictable offence.

10. [10]
    However, the obligation of the prosecution in respect of the conduct of a committal proceeding is subject to requirements of fairness and justice to an accused. Hence the discretion of the prosecution as to whom or how many witnesses are called to give evidence in a committal proceeding is not to be exercised narrowly or capriciously:

“[T]he responsibility of prosecuting counsel at the trial would by no means be discharged by calling the minimum number of witnesses required to establish the charge. He would be expected to call all the material witnesses unless there were good reasons of the kind discussed in the cases for not calling any of them. The responsibility of the police prosecutor at the preliminary hearing is not fundamentally different. It is not sufficient for him to call only the minimum evidence required to make out a prima facie case. He is also required, in the absence of sound reasons to the contrary, to call all witnesses whom, in the exercise of his discretionary judgment, he considers to be material irrespective of whether their evidence strengthens or weakens the case for the prosecution. There may be some greater latitude as to what constitutes sound reason in the case of a preliminary hearing in view of the ability of the prosecution to supplement the evidence at the preliminary hearing by supplying to the defence statements of additional witnesses. This may enable the prosecutor to have greater regard to difficulties in procuring the attendance of witnesses, particularly merely supporting witnesses, than would be open to prosecuting counsel at the trial. But the function and responsibility of the prosecutor at preliminary hearing is essentially the same as that of prosecuting counsel at the trial”: King CJ in Harry; ex parte Eastway (1985) 39 SASR 203 at 210-211; 20 A Crim R 63 at 70-71.

11. [11]
    The discretion whether or not to call a material witness at the committal proceeding should not be made simply by reference to tactical considerations: R v Walden (1986) 23 A Crim R 242 at 246-247.

12. [12]
    An accused may call evidence at a committal proceeding, although in practice this occurs infrequently: see s 104(4) Justices Act (supra).

A Stay of Proceeding

13. [13]
    It is open for a court in an exercise of discretion to stay a proceeding where the conduct of a commit proceeding has created a prejudice to the accused in some way, including a failure of the prosecution to call a witness.

14. [14]
    However, a stay of proceedings in this case is not in issue. A stay of proceedings was not sought by the applicant. The reasons for that conclusion are not relevant save that this is a case in which a stay is not in my view appropriate.

Exhibit 1 in the Committal Proceeding

15. [15]
    A large bundle of medical reports and health and associated documents were tendered on the committal proceeding (Exhibit 1). They were provided by the accused or received by the police on subpoena served on third parties. However, they were not the subject, so far as I am aware, of any or at least any significant examination or cross-examination in the committal proceedings. None of the makers of the reports or other documents were called to give evidence at the committal proceeding.

The Issue on the Trial and the Medical Evidence

16. [16]
    There is an understanding in this application that the primary issue on the trial is likely to be whether the accused suffered an event giving rise to a defence of non-insane automatism: s 27 Criminal Code (Qld). The accused referred in his record of interview to circumstances that appear to have provided a factual basis for that understanding. Hence the prosecution has decided to call medical evidence to rebut such a defence, to be adduced in its case.

17. [17]
    The evidence proposed to be lead by the prosecution appears to be appropriately adduced in examination in chief rather than in re-examination. To do the latter create an impermissible splitting of the prosecution case.

18. [18]
    Consequently the documents in Exhibit 1 and the post-committal report of a Dr R, prepared for the prosecution in response to the defence raised in the record of interview and some of the documents in Exhibit 1, have engaged the lawyers in a more focused way on the documentary material. Hence the directions about the ‘Basha’ hearing, to which I have referred at paragraph [1].

The Potential Witnesses

19. [19]
    Mr Baulch SC for the accused has requested the Crown to call a number of witnesses on the proposed ‘Basha’ hearing: Dr R., Dr Re., Dr Green, Dr Kay, Dr Ri., Dr E., Dr W., Dr McL. and Detective Byrnes.

20. [20]
    The Crown Prosecutor, Mr Cowen has agreed to call four witnesses: Dr Ri., Dr Re., Dr Reid and Detective Byrnes, but not the others.

The Record of Interview

21. [21]
    In his record of interview the accused told police about a recent history of depression, a regime of medication, a generalised arthritic condition and other health issues. He said he had never recently been knocked unconscious. He was short sighted but did not need glasses for reading and writing. He was asked if he had "any history of conditions such as diabetes, heart problems, epilepsy or strokes" but his answer, which is omitted in the transcript, appears not to have been audibly recorded. He referred to his alcohol consumption. He was asked about medical practitioners he had consulted in the past.

22. [22]
    The interview somewhat belatedly arrived at the events constituting the motor vehicle incident. The transcript, unfortunately, is replete with gaps where parts of questions and answers have not been transcribed.

23. [23]
    From page 56 of 75 (from about line 2595) is a transcript of relevant questions and answers, identified as ‘DB = Byrnes’ and ‘B = accused’. There are a number of gaps or indecipherable parts in this version of the transcript:

24. [24]
    At that point in the interview the accused appeared to have experienced an unusual episode that he seemed to describe as a depressive or "squeezy" sensation.

25. [25]
    He then said that he started feeling "yukky" before the train lines near a construction site. His last visual memory of the motor vehicle accident was at or about that location.

26. [26]
    He told Detective Byrnes that he had no recollection of a motor vehicle collision, he had not suffered any psychological condition other than depression nor suffered any memory loss.

27. [27]
    Finally, there was a conversation between the corroborating police officer, Sergeant Thomson and the accused (at page 68 of 75 from line 3144 of the transcript, identified as ‘T = Thomson’ and ‘B = accused’:

The Issues for Determination on this Application

28. [28]
    There are four issues:

1. (a)
   the nature and scope of the medical evidence the witnesses that Mr Baulch SC has requested the prosecution to call might give; 

1. (b)
   the proper scope of a ‘Basha’ hearing;

1. (c)
   whether the prosecution has an obligation to accede to the accused's request further or in full;

1. (d)
   what evidence may properly be lead on the ‘Basha’ hearing in this case and by whom.

The Nature and Scope of the Medical Evidence

29. [29]
    It is useful to start with a short description of the medical evidence that the Crown intends to rely on at trial. The evidence of Detective Byrnes is not material in the consideration of the four issues.

# DrRi.

30. [30]
    Dr Ri is a consultant neurologist. In August 2005 he conducted an EEG and a neurological examination of the accused, who had complained of a "funny turn" whilst attending a meeting. Apparently in mid-conversation he had grabbed his throat, said, "What's wrong with my voice?" and stared blankly for about a minute. He then resumed normal conduct. It seems this account was given to Dr Ri by another person. The accused apparently has no recollection of it at all. There was no relevant medical history. The accused had been drinking to excess.

31. [31]
    Dr Ri said the neurological examination and EEG were normal. He expressed the following opinion: 

"I doubt the episode was epileptic (although certainly it is a consideration as you point out). My feeling is that it may have been due to transient global amnesia, given that he has a longer period of amnesia during which he clearly performed quite a complex task in giving a presentation at a meeting."

# Dr Re.

32. [32]
    Dr Re is a consultant neurologist. He conducted an EEG on a referral from Dr G. He reported the following:

"The background rhythm consisted of moderate voltage 9-10Hz Alpha activity which attenuated normally on eye opening. As the recording progressed brief runs of phase reversed theta activity and occasional sharp wave discharges were seen to occur over the right frontal-temporal region. Hyperventilation and photic stimulation produced no additional information."

33. [33]
    The opinion expressed was:

"An abnormal recording. There is the suggestion of a focal and potentially epileptogenic disturbance over the right frontal-temporal region."

# Dr R.

34. [34]
    Dr R is a consultant neurologist. She provided a report dated 03 August 2009 to the police. She was provided with comprehensive material relating to the motor vehicle incident, the record of interview conducted with the accused and the documents comprising Exhibit 1. By reference to those parts of her report that are admissible in evidence, it can be summarised in the following way. Dr Re referred to a CAT scan of the brain post-incident and an ECG and an echo. She said that all were normal. She noted that the accused claimed no recollection of the incident and that no neurological examination or EEG was requested by the medical staff at the hospital.

35. [35]
    She related the incident investigated by Dr Ri in 2005, the EEG and brain scan and the opinion expressed by him; the EEG in October 2008 and the opinion expressed by Dr Re (she said limited sections only of the EEG trace were seen by her); she referred to statements made by the accused in his record of interview; and she expressed forthright but contrary opinions about the opinions of Drs Ri and Re.

36. [36]
    She referred to "claimed selective amnesia" by the accused about the motor vehicle incident. She referred to her own clinical experience and the interpretation of EEG's. She expressed an opinion about the movement of the motor vehicle on the road prior to the incident and expressed an opinion as to whether the accused was conscious or unconscious. She concluded that the accused had no medical or neurological condition which would cause loss of consciousness, that there was no evidence of a seizure or loss of consciousness and that there had been a misdiagnosis of an EEG by other medical practitioners.

# The Submissions about that part of the medical evidence

37. [37]
    As I have observed the three medical witnesses did not give evidence at the committal proceeding.

38. [38]
    The reason, if any, for the witnesses not being called at the committal proceeding is not relevant. Certainly there is no issue of impropriety by the police prosecutor or the police investigators. There is no evidence that the accused or his lawyers at that time were in any way dilatory in their preparation or conduct of the committal proceeding.

39. [39]
    The evidence of the three medical witnesses relied upon by the prosecution in the context of this case appears to be critical. Hence a hearing in the nature of the Basha inquiry is entirely appropriate in respect of those three witnesses.

40. [40]
    Mr Baulch SC wants the other witnesses called by the prosecution on the ‘Basha’ hearing. He not unreasonably wishes to retain the forensic advantage of the cross-examiner. He submitted that the evidence of the other doctors was relevant and, by implication probative for the prosecution, even if only peripherally.

41. [41]
    Mr Cowen submitted that the potential evidence of Dr G was inherently unreliable. He submitted he would not call her or produce her for cross-examination on the Basha hearing for that reason and that he was not obliged so to do.

42. [42]
    Mr Cowen's view about Dr G appears to be based on an opinion expressed by Dr R in her report, although it appears from the edited copy of her report that was produced on the application, that it is not intended at present to adduce that opinion at trial. Dr R was critical of Dr G's interpretative methodology and did not accept the opinions expressed by her.

43. [43]
    Mr Cowen's view of the other potential medical witnesses was that they were either "requesting" and "linking" practitioners and that they did not express any relevant opinion. He did not regard Dr McL's report as relevant to his case.

# Dr G

44. [44]
    Dr G was consulted by the accused after the motor vehicle incident on referral by Dr E. She made three reports: 10 September 2008, 03 November 2008, and 02 February 2009.

45. [45]
    She reported the following: that the accused said he had felt a heavy feeling come through his body whilst driving, that he had never had any episodes of loss of consciousness before, that he had a history of depression and had been previously prescribed anti depressant (or anti-epileptic) drugs and had taken 100mg tablets the day prior to the motor vehicle incident and said that he drank "quite a lot of alcohol".

46. [46]
    The accused's physical examination was largely unremarkable. She said that there was some loss or reduced sensory response on nerve conduction studies. An MRI scan of his brain was normal.

47. [47]
    Dr G reported an EEG "which shows evidence of a right frontal epileptic focus". She expressed an opinion (without detail) that the latter was "the most likely cause of his motor vehicle accident". She prescribed Epilim (which I presume is an anti-epileptic drug) on an increasing dosage curve. In her final report she unequivocally refers to the accused having suffered an epileptic "seizure" (I note that in Dr Re's report he refers to Dr G as the "referring physician" for the EEG).

# Dr McL.

48. [48]
    Dr McL is a neurologist. The accused consulted him in March 2009. He made two reports dated 06 July 2009 and 09 December 2009.

49. [49]
    In his first report addressed to the accused's former lawyers he referred to a history, given to him by the accused and extracted from prosecution witness statements, of the motor vehicle incident and a medical history. He referred specifically to Dr Ri and Dr G's consultations.

50. [50]
    He expressed the following opinion:

"A partial onset seizure arising from the right frontal lobe could produce behaviour to account for the two collisions that occurred on 7 July 2008. At the onset of such a seizure a person may become vague and unaware of their surroundings for several seconds before the motor manifestations of the seizure become apparent. The initial motor manifestation is usually rigid posturing of the limbs and this would explain the acceleration occurring immediately after the first collision. Other neurological causes of abnormal behaviour are excluded by the observation that he was conscious soon after the second collision, although disoriented and subsequently CT brain scanning and MRI brain scanning identified no structural lesions within the brain. The electro encephalogram performed in November 2008 also supports the diagnosis of epilepsy. The time course of events would be consistent with the duration of an epileptic seizure."

He also said that:

"I am unable to state the onset of his epilepsy, given that he may well have had seizures occur in his sleep which were not recognised as being epilepsy or that brief seizures producing vague unawareness and associated amnesia may have occurred which were not obvious to Mr B. and were in fact not witnessed."

51. [51]
    In his second report addressed to general practitioner Dr W, he referred to an event that apparently occurred in May 2009 (although this is not mentioned in his first report) where the accused in the course of a job interview is reported to have talked about technical matters in a manner no one present could comprehend. Apparently the accused has no recollection of that event. Further episodes were said to have followed when he went home. His medications were increased. Dr McL was uncertain of the cause. He said epilepsy might be the answer. He referred to an EEG "earlier this year" that was still abnormal.

# The General Practitioners

52. [52]
    Dr W consulted with the accused in March and May 2009. He made a report addressed to the accused's current lawyers dated 10 June 2010. He referred to the May 2009 event. He did not express any relevant opinion.

53. [53]
    Drs E and K do not express any relevant opinion. They appear to have been referring medical practitioners.

The Scope of a Basha Hearing: History and Discussion

54. [54]
    It may be useful to review the history of the proceeding commonly referred to as a ‘Basha’ inquiry or ‘Basha’ hearing and to discuss its nature and scope in practice. The proceeding has its origins in the judgment of Hunt J (as he then was and with whom the other members of the NSW Court of Appeal agreed) in Basha v R (1989) 39 A Crim R 337, at 339. His Honour referred to the power to stay proceedings and continued: 

"[I]t is obvious, however, that there would usually be many other, more efficient, ways in which that prejudice might be removed. I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will in the end be for the trial court, not the Crown, to decide."

55. [55]
    Basha had been committed for trial on drug charges. One of those charges involved an allegation of supply of a drug to an undercover police officer. The evidence of that officer was not called at the committal proceeding. The reason given was that he was still “under cover” at the time. Subsequently the prosecution informed the accused Basha, that it intended to call the undercover police officer on the trial and gave him a statement of the evidence which the officer was to give. The appeal to Hunt J was brought by the New South Wales DPP against an order made by a judge in the District Court which stayed the proceedings upon the indictment until fresh committal proceedings had been completed, the order being made so that the evidence of the undercover police officer could be called at a further committal proceeding. It is against that factual background that the relevant statements made about what is now known as a ‘Basha’ inquiry or hearing arose.

56. [56]
    In his report ‘Review of the Civil and Criminal Justice System in Queensland’ December 2008 (“the Moynihan Report”), the Hon Martin Moynihan AO QC  made recommendations about the conduct of committal proceedings in Queensland. He referred to ‘Basha’ hearings in the following terms (Ch 9 Reform of the Committal Process, at p213):

“A particular concern raised about the proposed changes is that they may lead to more pre-trial applications and in particular more ‘Basha’ inquiries. A ‘Basha’ inquiry refers to a pre-trial hearing conducted at the start of a trial but before a jury is empanelled to allow the defence to examine a witness where the witness was not available at committal or where the matter was presented directly in a higher court by way of ex officio indictment. It takes its name from a New South Wales case R v Basha (1989) 39 A Crim R 337. Such an inquiry cannot be held unless the accused can establish that there is a risk of an unfair trial without one” (emphasis added).

57. [57]
    Some of the recommendations of the Moynihan Report have been enacted in recent legislation in the Civil and Criminal Justice Reform & Modernisation Amendment Act 2010 (No 26 of 2010, to commence on a day to be fixed by proclamation) (“the CCJRMA Act”). Without descending to detail, the Act variously provides, so far as is relevant in this discussion, for the following:             

• Magistrates have supervisory responsibility for committals.

• New s 104 (2) (b) Justices Act 1886: the calling of witnesses for the defence.

• New S 110A (1) to (6).

• Cross-examination permitted only by agreement of prosecution and defence (subject to direction).

• Written statements by defence admitted only with prosecution consent and if no other party objects.

• New s 110B: directions re s 83A (5AA).

• Directions hearings and directions to require a person to attend and give oral evidence: s 83A (5AA).

• Magistrate must be 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; and must state reasons.

• Once only application for witnesses to be available, unless leave given to make further application.

• Pre-condition to requiring a witness for cross-examination: defence must advise prosecution, in writing, the name, general issue, reasons for calling and state a time for the prosecution response to be given (as set by the court or by practice direction, but no less than 7 days)

• New s 110C: limitations on cross-examination.

• New s 114: Registry Committals.

58. [58]
    R v Basha has been cited, considered, followed, applied and distinguished in a number of cases subsequently. So far as a review of the scope of a ‘Basha’ hearing is concerned, a reference to some of that line of authority is useful.

59. [59]
    I have already referred to the statement of King CJ in Harry; ex parte Eastway (supra). His Honour also wrote about the purpose of the preliminary examination process. At pp 208-209 (SASR) he wrote:

“The question to be decided by the magistrate or justice at the conclusion of the preliminary examination is whether there is sufficient evidence to put the accused on his trial. Ensuring that the accused will not be put on trial without sufficient evidence to justify that course has been described by Gibbs ACJ and Mason J as the “principle purpose” of the preliminary examination:  Barton v The Queen (1980) 147 CLR 75. But it is not the only purpose. The examination also serves the purpose of acquainting the accused with the case which is to be made against him at trial and of affording him an opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial. When discussing the consequences to an accused of depriving him of committal proceedings, Gibbs ACJ and Mason J in Barton’s case, pointed out that ‘in such as case the accused is denied (1) knowledge of what the Crown witnesses say on oath (2) the opportunity to cross-examining them.’  These purposes of a preliminary hearing were emphasised by Stephen J in the following passage:

‘These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused.

An accused also loses the opportunity of gaining relatively precise knowledge of the case against him, and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence but the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown’s evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused.’

In The Queen v Kelly; ex parte Hoang van Duong I pointed out that ‘a preliminary hearing provides a valuable opportunity for the defence to explore issues and to investigate facts in a way which is not practical at trial’. Deprivation of an accused of these benefits is reason why ‘committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process’:  Barton v The Queen per Stephen J p 105; and why a trial without a prior preliminary hearing has been described as a serious departure from the ordinary course of criminal justice’:  Barton v the Queen;  per Gibbs ACJ and Mason J at p 100,  and as ‘a serious procedural irregularity’ by Yeldham J in a passage quoted by Stephen J in Barton’s case.”

60. [60]
    In DPP (C'th) v Bayly (unreported VC 9405562 – Supreme Court of South Australia) Olsson J referred to those observations of the Chief Justice and to an explanation of the ‘Basha’ inquiry by Hunt CJ at CL (as he then was) in R v  Sandford (1994) 33 NSWLR 172 (at 180-181): 

“…[W]hat I suggested there [i.e. in Basha] was that an accused may be permitted in the absence of the jury to cross-examine a witness who had not been called at a committal hearing in order to overcome any prejudice from that fact. However, it is not a legitimate purpose of committal proceedings to try out risky questions so that they will not be repeated at the trial if the answers prove to be embarrassing or unproductive:  Moss v Brown  [1979] 1 NSW LR 114 at 125;  Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215 at 233. The loss of an opportunity to do so at the committal therefore does not entitle an accused to try out the questions at the trial in the absence of the jury so as to avoid the embarrassment of unsuccessfully raising an issue in the presence of the jury. Those who seek to take advantage of what I suggested in R v Basha often appear to ignore my reference there (at 340) to the same propositions.

I should add that I acknowledge the criticism expressed by Sully J in R v Cheung Wai Man (Sully J, 11 September 1990, unreported) at 5 concerning the use by me of the term ‘voir dire’ for what has apparently now become as a ‘Basha’ enquiry. It is indeed a technical misuse of that term, De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941)  42 SR (NSW) 1 at 8; 59 WN (NSW) 22 at 25, but it is a convenient one. (I notice that the term ‘voir dire’ was also used by this Court to describe this procedure in R v Palmer (1992) 64A Crim R 1 at 11). What I intended to refer to was simply an examination of the witness in the absence of the jury.

I maintain my belief in the obvious value of such a procedure – by whatever name it may be called – provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used in appropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 59-60.

The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair:  Barron v Attorney-General for New South Wales (at 219, 233); R v Basha (at 339). If a decision is made that it is appropriate to follow such a procedure, it is something which should usually be followed before the jury is empanelled or at some other time which does not interrupt the trial.”

61. [61]
    Olssen J in DPP (C’th) v Bayly concluded that, inter alia, given the onus borne by an applicant (as adverted to by Hunt CJ at CL), it would be inappropriate simply to permit a wide ranging voir dire type enquiry for the asking.

62. [62]
    In DPP v Denysenko and Anor (unreported BC 9700373, Court of Appeal of Victoria), Brooking JA (with whom Tadgell JA and Hedigan AJA agreed or relevantly agreed respectively) considered an appeal by the DPP against an order in a judicial review application which, so far as is relevant, compelled a magistrate to exercise his discretion to take the evidence of three witnesses who were not called on a committal proceeding. His Honour referred to the ‘Basha’ inquiry in these terms (at 6-7):

“Let it be supposed that it was in the interests of justice that the defendant be able to cross-examine the three witnesses on what I will call the new matters before the trial gets under way. Such an examination can be held before the judge. One can, as I have said, well understand the unwillingness of His Honour Judge Hassett to have a very large number of witnesses examined before him as a preliminary to the trial. But now the witnesses are only three in number and the matters about which it is desired that they be examined are not extensive.

I can see no reason why the judge before whom the defendant is presented should not, if he or she sees fit, allow the three witnesses to be cross-examined on behalf of the defendant by way of what has become known in New South Wales as a ‘Basha’ enquiry:  R v Basha (1989) 39 A Crim R 337 esp at 339; R v Sandford (1994) 33 NSW LR 172 at 180-1 per Hunt, CJ at CL; Director of Public Prosecutions (C’th) v Bayly (1994) 126 ALR 290 at 310-312. Where notice of additional evidence has been given, it is not uncommon in this State for the judge to permit cross-examination in this way.”

63. [63]
    His Honour referred to such inquiries as held in Victoria, in the following terms (at 7):

“I observe in passing that my impression is that ‘Basha’ inquiries have been held in Victoria on occasions when the interests of justice did not require them. A judge asked to allow cross-examination in this way should carefully consider whether to do so is warranted. The mere fact that notice of additional evidence has been given is of course not in itself sufficient reason for a ‘Basha’ inquiry. Regard must always be had to the circumstances of the particular case, including in particular the nature of the additional evidence."

64. [64]
    The ‘Basha’ inquiry has been referred to in some authoritative journals. In “Changes to Committal Procedures in New South Wales (1997) 21 Crim LJ 213 (Shaw QC and Schurr) the authors reviewed recent developments in changes to committal procedures in New South Wales and Britain. In the course of the article reference was made to pre-trial hearings:

“Pre-Trial Hearings

Concerns have been expressed that curtailing committals may in some instances extend the length of trials, including time after a jury has been empanelled. In England, the government has answered this concern by expanding the use of Preparatory Hearings to extend to any matter committed for trial whose length or complexity means that substantial benefits are likely to accrue from the holding of a Preparatory Hearing [Criminal Procedure and Investigation Act 1996 (UK) Part III ss 28-42]. Up until now, Preparatory Hearings have only been used in complex fraud cases transferred directly for trial. The restriction to cases of “complexity” and “length” may however limit the value of such a practice. For example, the sufficiency of evidence in a short and straight-forward case may depend entirely on the admissibility of an alleged confession, which must be assessed after the trial had started and not at the Preparatory Hearing.

In New South Wales, a pre-trial examination to test the evidence of a witness who was not cross-examined at committal is called a “Basha-style” enquiry. At those proceedings a trial judge may permit cross-examination of a witness on a voir dire before the witness is called at the trial. The procedure may be allowed if:

‘the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings [R v Sandford (1994) 33 NSWLR 172 at 181].’”

65. [65]
    In “The Committal – Some Recent Developments and Findings (1999) 8 (3) JJA 160 (Willis), the author discussed the impact of a report “The Committal in Australia” (Bretton & Willis, AIJA Inc, 1990) and developments in Australian jurisdictions, including Queensland, following its publication. The developments per se are not relevant for my purpose here, but the author commented on ‘Basha’ hearings in that context in the following terms:

“These new developments, then, seem to significantly weaken the committal as a filtering mechanism. The cross-examination of witnesses in some jurisdictions is quite restricted. A reliance on written witness statements for key witnesses will frequently mean that the credibility of those witnesses cannot be assessed. In South Australia, it is now provided that the credibility of witnesses is not a fact to be considered by the magistrate when deciding whether to commit or discharge a defendant. Furthermore, it is possible that some of the traditional functions of committals will now be done at the trial stage by means of such procedures as a Basha enquiry.

It can be argued that such an approach means that key decisions would be made late in the process, after briefing of counsel and preparation of the case, and, in the case of Basha hearings, in a more expensive venue. It may be, however, there are in fact only very few Basha hearings.

66. [66]
    The ‘Basha’ inquiry process has not received much in the way of judicial analysis in Queensland. However, in R v Robinson [2007] QCA 349, Keane JA (as he then was) referred to the ‘Basha’ inquiry or hearing in the following terms:

“[10] On the afternoon of 8 May 2007, the first day of the trial, the complainant had completed her evidence and left the court. Only then was counsel for the appellant made aware of the forensic evidence from the testing of the bedding in the complainant’s upstairs room.

[11] The appellant did not seek any time to consider the significance of this evidence after it emerged. The jury were, however, informed of the results of this forensic testing, i.e. that residue from the semen of an unknown man had been found on the bedding where the last act of rape alleged by the complainant had occurred.

[12] On the appellant’s behalf, it is said that this material should have been disclosed to the defence pursuant to s 590AB of the Criminal Code 1899 (Qld) at a much earlier point in time…

…

[18] The appellant’s counsel could have had the complainant recalled to enquire of her on a voir dire about the presence of the semen on the bedding [R v Basha (1989) 39 A Crim R 337 at 338-339].”

67. [67]
    The change to the manner in which committal proceedings are conducted in Queensland that will take effect upon the commencement of the CCJRMA Act have in some legal quarters been thought to be likely to lead to an increase in the number and scope of applications to a Judge in the trial of an indictable offence for the conduct of a ‘Basha’ hearing, particularly where there is no or limited cross-examination of witnesses produced at committal proceedings. However, I do not think that is likely to be the case. The ‘Basha’ hearing is not a substitute for a committal proceeding. The rationale for the ‘Basha’ hearing was never intended and does not extend to such a scope. The ‘Basha’ hearing is, in my view, limited to the scope that I have referred to. The fact that the legislature has decided to modify and limit the scope of a committal proceeding does not in my view open the door to de facto proceedings akin to committals being conducted in this Court, under the guise of a ‘Basha’ hearing, which has as it’s rationale the provision of the opportunity to an accused to do what he might otherwise have been entitled to do at a committal proceeding (R v Sandford (supra). If an accused is prima facie not entitled by the CCJRMA Act to cross-examine a witness in the committal proceeding, he cannot generally be entitled to do so in this Court in a ‘Basha’ hearing.

68. [68]
    A procedure such as the latter, it seems to me, has always been available in a criminal trial without it necessarily being characterised as a “Basha” hearing. Be that as it may, whether the procedure is properly called a “Basha” hearing or inquiry or a voir dire, the procedure reflects the need to allow cross-examination of a witness in the absence of the jury, even during the course of a trial in order to ameliorate any unfairness caused by, for example, late notification of critical evidence going to facts within the prosecution case.

69. [69]
    In my view there are and must be some boundaries in a ‘Basha’ hearing. A ‘Basha’ hearing in practice is generally permitted where a prosecution witness - usually a critical or perhaps otherwise important in so far as the factual context of the prosecution case is concerned - has not been called to give evidence in the committal proceeding.

70. [70]
    I do not think that is necessarily the boundary or limit. There may be other circumstances - a newly emerged fact or circumstance in the prosecution case that a witness who was called at the committal proceeding has sworn to in an addendum statement post-committal or, indeed, a new witness who has so sworn, for example - that gives rise to a ‘Basha’ hearing.

71. [71]
    Those examples are not exclusive. However, they all deal with the facts and circumstances of the prosecution case. They do not deal with the defence case. Therein is the boundary line or limit in my view.

72. [72]
    The passage I have cited from the judgment of King J in Harry; ex parte Eastway refers to the calling of witnesses considered to be material "irrespective of whether their evidence strengthens or weakens the case for the prosecution".

73. [73]
    That statement in my view refers to the factual circumstances of the prosecution case, not to opinions of experts that are expressed about the factual circumstances. Opinions are in quite a different position in considering the obligations of the police prosecutor and the Crown prosecutor. Indeed King CJ referred to "some greater latitude as to what constitutes sound reason in the case of a preliminary hearing" for the police prosecutor. In that regard, the Crown prosecutor really is standing in the shoes of the police prosecutor in so far as the conduct of a ‘Basha’ hearing is concerned.

74. [74]
    The scope of a ‘Basha’ hearing is thus limited in my view in the way that I have expressed. This is a criminal trial. It is not a civil case. The ‘Basha’ hearing is not a preliminary trial of the opinions of expert witnesses.

75. [75]
    I have intentionally used the word ‘generally’ because there may be cases where circumstances are such that it is in the interests of justice or of fairness to an accused or as a matter of public policy that a witness or witnesses may be cross-examined on a ‘Basha’ hearing. Similarly, the long-standing practice of permitting the conduct of a voir dire at the commencement of or in the course of a trial where appropriate (for example – although infrequently arising now - in determining an issue of admissibility of a confessional statement) circumstances arise. One further example is that adverted to by Keane J in R v Robinson (supra). Ultimately, it remains a matter for the discretion of the trial judge, to be exercised in the context of the factual circumstances of the particular case.

Discussion about the ‘Basha’ hearing in this case

76. [76]
    I do not doubt that the accused could seek to lead evidence from all of the doctors in the course of his case on the trial, subject to any objections that might arise in the context of the evidence adduced in the trial. However, is there any obligation on the prosecution to call or make available for cross-examination any or all of the doctors on a ‘Basha’ hearing? To put that question in another way, would there have been any obligation on the police prosecutor to have done so on the committal proceeding?

77. [77]
    Even though the potential evidence of the other doctors may cover the same or associated ground as does the evidence of the three doctors upon whom the prosecution elects to rely, that does not oblige the prosecution to adopt them even in the sense of a being a conduit to the production of their evidence, in the proceedings. The prosecution does not rely on the evidence of the other doctors, regards it as not probative or does not accept the reliability of any opinions expressed by one or more of them. None of them have prepared reports for the prosecution. If any one of them had done so, I would have thought the prosecution had an obligation to at least produce the witness for cross-examination at the trial.

The Obligation of the Prosecution in this case

78. [78]
    Applying the view that I have expressed to the application by the accused in this case, I do not consider that the prosecution has any obligation to call or indeed to produce for cross-examination any of the witnesses requested by the accused, upon which it does not intend to rely in the trial.

79. [79]
    The court is not able to direct that the prosecution call one or more of such witnesses. The remedy in other circumstances may have been a stay of proceedings. However, neither of those matters are relevant, as I have said.

80. [80]
    Where does that leave the accused? The Crown or the accused require leave of the court upon application to conduct the ‘Basha’ hearing. The Court retains control of the proceeding subject to its discretion, and such control includes the scope of a hearing if one is granted.

81. [81]
    The accused, as I have said, would have been entitled to call evidence at the committal proceeding. The presiding magistrate would have had control over the scope of the evidence, subject to a discretion, sought to be adduced. Such evidence would almost certainly, I would have thought, have related to factual circumstances. In my view the same reasoning applies to a ‘Basha’ hearing.

The Evidence that may be led

82. [82]
    In this case there is evidence of some facts relating to medical and health issues, but primarily it is evidence of opinion that is sought to be adduced. The evidence of Drs G and McL will inevitably be referred to in the cross-examination of Drs Re, Ri and R I would have thought.

83. [83]
    In that circumstance I will permit the evidence of Drs G and McL to be adduced upon their being called by the accused if he so chooses to do, on the Basha hearing. I would need to be persuaded of the relevance of any evidence of Drs K, E and W on that hearing. It may be that the chronology of their involvement with the accused could be provided in a written summary form by agreement or by formal admission in the trial. In any event, they do not appear to express any relevant opinion and therefore do not seem to me to be relevant witnesses within the limits of a ‘Basha’ hearing.

84. [84]
    To the extent that my permitting the accused to call the two doctors is exceptional in the light of the limits that I have referred to in respect of a ‘Basha’ hearing, it is appropriate in the interests of justice and fairness to the accused and reflects the fact that there was documentary evidence of medical history tendered but not analysed on the committal proceeding, that the prosecution have since the committal proceeding prepared a body of medical evidence to rebut the defence raised by the accused in his record of interview and that the additional medical evidence does refer to pre and post-incident facts and to further and contrary expert opinions, that inevitably will be the subject of further opinion expressed by the doctors on whom the prosecution intend to rely, in the course of the ‘Basha’ hearing.

Conclusion

85. [85]
    I have not in this judgment dealt with any potential objection to evidence on any ground, including relevance, nor to the logistics about the reception of the evidence that is currently proposed to be led or which may be led.

86. [86]
    The application should be granted in part so far as Drs G and McL are concerned and the accused has leave to call them on the ‘Basha’ enquiry if he chooses so to do. The application is otherwise refused. It is the expectation of the court that the prosecution will call Drs Ri, Re and R.

ORDERS

87. [87]
    1. Application granted in part, to the extent that the accused may call evidence on the ‘Basha’ hearing.

2. Application refused in respect of a requirement for the prosecution to call on t the‘Basha’ hearing witnesses other than those upon whom it intends to rely in the trial.