DPP v Farquharson (Ruling no 1)

[2007] VSC 294

IN THE SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1419  of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 1

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	16 August 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 294

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Criminal law and procedure – murder – limitation of ambit of Basha inquiry.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

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HIS HONOUR:

1. I am not persuaded that any of these matters are appropriate for a Basha Inquiry.[1]  They seem to me to be holistic, general and exploratory.  One can well understand that it might be desirable from Mr Morrissey's point of view to wish to have a dry run on numerous things, and to explore things, and that is a sensible desire; but the system of the court does not accommodate a dry jury trial without a jury, and then a jury trial with a jury.  Such a course is contrary to the principles stated in R v Callaghan[2] per Winneke P at 90-91 [21], R v Rowley[3] per Young CJ at 375 and Beach J at 380 and R v Frugtniet and Frugtniet[4] per curiam.  For the reasons eloquently stated in Frugtniet, I think that this application is much too broad, and holistic, and exploratory to be granted.

   [1]R v Basha (1989) A Crim R 337.

   [2][2001] 4 VR 79 and in whose reasons Brooking JA and O’Bryan AJA agreed.

   [3](1986) 23 A Crim R 371.

   [4][1999] 2 VR 297 at 303.

1. I said to Mr Morrissey, and I have always done this, that if there is a specific problem that is finite, although to do so is not procedurally pure, as a matter of fairness I say to counsel ask a couple of questions before the jury comes in or overnight; but that is not what Mr Morrissey is seeking here.  He is seeking a holistic, exploratory inquiry and I consider that is inappropriate.

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