R v Stacey[2014] QDC 299

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the Defence pursuant to section 590AA of the Criminal Code for a “Basha”^[1] hearing as to the witness Kevin Ace Wilson. The circumstances of the matter are that Mr Stacey is charged with one count of burglary by break at night whilst armed in company damaging property, two counts of deprivation of liberty, one count of attempted armed robbery in company and one count of threatening violence at night. All of these offences are alleged to have occurred on 6 January 2014 in Emerald.

2. [2]
   Mr Bradley Wallace has provided a statement dated 7 January 2014. He says in his statement, in essence, there was a home invasion of his house on the relevant date. He identifies the voice of Cozamanis but ultimately does not identify the accused as being present. It was agreed by the police on 27 August 2014 that he be cross-examined at committal and a cross-examination occurred.

3. [3]
   Mr Wilson was interviewed by way of a formal record of interview on the 8 January 2014 at 21:40 hours. It is unclear from the material how long he was in the company of police prior to the provision of this record of interview.

4. [4]
   After the interview, he provided a police statement of some eight pages, which was signed on 9 January 2014. I am not sure whether he was present throughout the night providing this interview or statement or not. In any event, he says in the start of his statement:

“I have provided this statement of my own free will and have not been promised anything or threatened in any way to make this statement by any person.”

5. [5]
   There must have been discussions between him and the police as to this statement, and further there were paragraphs about him knowing that he would be liable to prosecution if he stated anything untrue in the statement. There must have been discussions about that matter prior to the provision of this statement, the details of which are not clear from the material.

6. [6]
   He, in essence, describes his involvement in this alleged crime by driving the accused and others to the house. Potentially he could be regarded as a party to the offending. There is no evidence that any indemnity has been granted or undertaking to not prosecute him has been given. We do not know if any such discussions occurred with the police.

7. [7]
   The other aspect of all of this is that he has clearly a crucial witness at trial identifying the accused’s involvement. One does not know whether he might claim privilege on the grounds of self-incrimination once warned.

8. [8]
   It is common ground an application was also made to cross-examine him in the Magistrates Court at Emerald, it being refused by the learned Magistrate. We do not have the transcript of the argument or reasons in this regard, but I am told by counsel who appeared that the police Prosecutor assured the Magistrate there was no reason to doubt Mr Wilson’s credit and he had given a full statement. In those circumstances the learned Magistrate declined the request made to cross-examine.

9. [9]
   I note s 110B, subsection (1) of the Justices Act 1886 (Q) provides:

“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.”

10. [10]
    The learned Magistrate did not deal with the issue of privilege. It seems to me that this is a very important matter to be determined in the advance of a trial, because, for example, if the Crown opened its evidence and the witness claimed privilege and did not answer further questions, then the whole trial would be at risk. So one would think the issue of the claim for privilege is a very relevant one to be determined under 590AA.

11. [11]
    Also I refer to the case of Poliakov v Magistrate Andrew George (2009) 212 A Crim R 461, a case in which a judicial review application was brought under the New South Wales legislation against the refusal of a Magistrate to permit cross-examination of a witness who was involved in some drug transactions. He originally denied involvement and then was interviewed by the New South Wales Crime Commission and gave a 16-page witness statement after an inducement was given to him nominating inter alia the plaintiff as being involved. A number of other induced statements were given.

12. [12]
    The Magistrate declined cross-examination as to the circumstances in which the induced statements were created, the extent of the witness’ own drug dealing activities and his involvement with the plaintiff. There was a short ex tempore decision in which the Magistrate did not think there was any substantial reason given to grant the application. Buddin J examined the legislation and the relevant principles and noted inter alia at [24] that:

“In this regard it should not be forgotten that a properly conducted committal can benefit the prosecution as much as the defence.”

13. [13]
    Referring to Sim v Corbett [2006] NSWSC 665, BuddinJ noted at [26]:

“1.The purpose of the legislation is to avoid delays in the criminal process by unnecessary cross-examination at committal.

2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.

3. The process is an important part of the committal proceedings. The refusal of an application may well have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial. …

5. The obligation to point to substantial reasons is not as onerous as the reference to ‘special reasons’, nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.

6. Each case will depend on its own facts and circumstances. It may be a situation where cross-examination results in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise trial. The categories are not closed and flexibility of approach is required in light of the issues that may arise in a particular matter.

7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a determination or discretion to reject evidence at trial.

8. The expression ‘substantial reasons’ is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and issues which critically arise or are likely to arise at trial.”

14. [14]
    It was further noted at [27], referring to JW v Director of Public Prosecutions [1999] NSWSC 1244:

“While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty.”

15. [15]
    In the result, his Honour determined that one of the matters on which the plaintiff sought to explore in cross-examination were the circumstances of the inducement, and he was entitled to have sworn evidence of the witness upon that subject, and in the result, the order by the Magistrate was set aside.

16. [16]
    I have also had regard to the decision of Judge Durward in B v The Queen [2010] QDC 417. I think it is fair to say that the use of the Basha hearing should not be simply a process of attempting to surmount the provisions of s 110B of the Justices Act.

17. [17]
    Ultimately the determination of an application to grant a Basha inquiry depends on the interests of justice and whether a fair trial to both parties may be achieved. Relevant to that is whether an application was made to cross examine at the committal and if there was, an examination of the Magistrate’s reasons and whether the reasons were adequate or appropriate in the circumstances.

18. [18]
    It seems to me in this case where the crucial witness identifying the accused is one in which that witness should be cross-examined, particularly considering potentially he is a party to the offence and potentially, after given advice, he may claim privilege. That is a matter which really should be determined in advance of the trial. Further, it seems to me in order to determine that question, there should be cross-examination on the witness’s own involvement in the alleged offence; otherwise, one does not even get to that point. It also seems to me very relevant from both sides’ point of view to determine the circumstances in which both the interview and the statement were made.

19. [19]
    Anyone experienced in the criminal justice system knows that there is a potential for a witness to give false evidence against another to improve their own position. I am not suggesting that is necessarily the case here, but it seems to me only through cross-examination can this be determined. Such a conclusion will not be present on the face of any material.

20. [20]
    In all of the circumstances, I am of the view a Basha inquiry should be ordered in this matter on two topics; firstly, the dealings between the witness Wilson and the police, and secondly, on his involvement in the alleged crime.