Nicholson v The Queen

[2017] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

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Medium Neutral Citation:	Nicholson v The Queen [2017] NSWCCA 38
Hearing dates:	14 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Before:	Hoeben CJ at CL at [1] Garling J at [2] Beech-Jones J at [48]
Decision:	(1)   Application for Leave to Appeal filed 7 December 2016 be dismissed; (2)   Application for Leave to appeal filed 1 February 2017 be dismissed.
Catchwords:	CRIMINAL LAW – appeal against interlocutory judgment or order – whether a Basha inquiry is an interlocutory judgment or order – no interlocutory judgment or order made by trial judge – application for leave to appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Kocer v R [2006] NSWCCA 328 KS v Veitch [2012] NSWCCA 186 R v Basha (1989) 39 A Crim R 337 R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 R v F [2002] NSWCCA 125 R v Steffan (1993) 30 NSWLR 633
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Bruce Frederick Nicholson (Applicant) The Queen (Respondent)
Representation:	Counsel: T Edwards (Applicant) N Adams (Respondent) G Bashir SC (Protected Confider)   Solicitors: Streeton Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) Legal Aid (Protected Confider)
File Number(s):	2015/199327
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 6 November 2016 Before: Huggett DCJ File Number(s): 2015/199327

Judgment

1. HOEBEN CJ at CL: I agree with the reasons of Garling J and the additional reasons of Beech-Jones J.

2. GARLING J: The applicant, Bruce Frederick Nicholson, seeks leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, to appeal from a decision of the District Court (Huggett DCJ) on 6 November 2016, refusing to permit an interlocutory procedure loosely described by counsel for the applicant as a Basha inquiry, whereby the applicant could interrogate JW, the complainant (or “protected confider”) as to the identity of the person (or persons) with whom the protected confider had engaged in counselling in relation to allegations of sexual assault and indecent assault upon her committed, allegedly, by the applicant.

3. The application for leave to appeal is opposed by the Crown which contends that there was no “… interlocutory judgment or order …” of the District Court for the purposes of s 5F(3) in respect of which leave to appeal can be granted. The protected confider also makes a similar submission.

4. At the conclusion of the hearing of the application, the Court announced the orders set out at the end of these reasons and indicated that reasons would be delivered in due course. These are my reasons for proposing the Court’s orders.

5. It was appropriate to first determine the question of whether an interlocutory judgment or order exists so as to ground jurisdiction in this Court to grant leave to appeal, before considering whether any error of law has been demonstrated.

6. In order to examine this question, some consideration needs to be given to precisely what occurred in the District Court in December 2016.

District Court Proceedings

7. It is apparent that the trial was listed to commence on Tuesday 6 December 2016 before Huggett DCJ and a jury. When the matter was called on, her Honour was informed by the Crown that the matter was not ready for a jury to be empanelled at that time because there was a pre-trial application (or applications) to be made by counsel for the accused, who is the applicant in these proceedings.

8. Accordingly, her Honour invited the Crown to present the Indictment so that the accused could be arraigned. This occurred. The accused was arraigned on three charges contrary to s 61E(1) of the Crimes Act 1900 of indecent assault of a person under the age of 16, and two counts, contrary to s 66A of the Crimes Act, of sexual intercourse with a person under the age of 10. To each of these counts, the accused pleaded not guilty.

9. The victim of each of these alleged offences was JW, to whom it is convenient to refer as “the protected confider”.

10. Counsel for the accused was asked to indicate what matters the Court ought deal with before the jury was empanelled. He said:

“Your Honour, there are two things that we are ready to deal with immediately. There is this issue as to the subpoena upon whoever the persons are that I will broadly call ‘treating professionals’. That perhaps should be dealt with first because if leave is granted it will no doubt take a period of days to turn the material around and have it presented to court and then have argument as to access. The Crown and I are hopeful that there are other things that we can deal with in the interim. There is one major pre-trial issue and it relates to what’s commonly known as a ‘pretext telephone conversation’ that the complainant made from the Balmain Police Station to the defendant some weeks after she made her initial complaint to the police. There is a challenge to the admissibility of that evidence that ought in my submission be determined on the voir dire.”

11. The second issue identified which relates to the “pretext” telephone intercept was not determined and forms no part of the issue before this Court.

12. To enable the Court to understand the debate which was to take place, the Crown was invited to briefly tell the Court the relationship between the accused, Mr Nicholson, who is the applicant in this Court, and the protected confider. The Crown gave a short outline.

13. Counsel for the accused then handed up to the Court a Notice of Motion. It does not seem to have been formally filed. It sought an order in the following form:

“That leave be granted pursuant to s 298 of the Criminal Procedure Act 1986 to subpoena documents that record a ‘protected confidence’ in relation to [protected confider] and complaints of molestation as a child under the age of 10.”

14. No form of subpoena or the wording of a schedule which is a part of the subpoena was attached to the Notice of Motion or otherwise put before the District Court. Hence, the only description as to the contents of the documents sought was that contained in the prayer for relief in the Notice of Motion.

15. The protected confider was represented by counsel in the District Court. Counsel was asked to ascertain whether, before the Court embarked upon hearing the accused’s Motion, she would be willing to disclose the identity of those professional counsellors with whom she had consulted prior to making a complaint to NSW Police about the effects upon her of the accused’s conduct. After an adjournment, counsel indicated that the protected confider was not willing to voluntarily disclose the names of those people.

16. Counsel for the accused was then asked by the presiding Judge to specify with some particularity what it was that he was seeking by the issue of the subpoena. He gave this description:

“Your Honour, it is, in terms of the material that I am seeking, I’m not seeking records of civilians and that type of thing. This is something that is directed – and perhaps it’s not drafted well enough, I take the blame for that if that’s right, but I am seeking what would traditionally be called ‘counselling records’. What would traditionally be covered by these provisions, and the focus of the enquiries in relation to what Cameron Richardson indicates in his statement is likely to exist, but it is not necessarily the limit of the enquiry.

If it’s the case that there are other treating professionals in relation to this particular set of allegations, then we would like to know their names, and we’d like to seek leave to issue a subpoena upon them.”

17. There was then further discussion between the Bench and the Bar. Counsel for the applicant was then asked what power the Court had to compel the protected confider to provide the names of the treating professionals. Counsel indicated that the power of the Court was to be found, impliedly, within the provisions in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 by reference to the necessity to ensure that the ability to issue a subpoena was not rendered nugatory. That Division deals with “Sexual Assault Communications Privilege”.

18. Counsel then sought to put his submission in this way, perhaps somewhat informally, but nevertheless effectively, to communicate the circumstance in which he thought the accused found himself, namely:

“Just because you don’t know the name of the counsellor doesn’t mean that that is the end of the enquiry and that the Court should turn its face against [that] proposition. You have a mechanism by which to find that out, and the mechanism I’ve suggested is a Basha inquiry.”

19. The reference to a Basha inquiry was understood by all present in the District Court to be a reference to the procedure discussed and adopted in R v Basha (1989) 39 A Crim R 337.

20. Huggett DCJ for the benefit of her counsel, distilled what was being sought from the protected confider, namely:

“Whether your client will consent to … a subpoena being issued and in turn production and access being granted, to any person she saw arising from the comment made by her husband in para 10 of his statement, whether she is prepared to disclose the name of the person that that information relates to, assuming the husband has that correct, and secondly, whether she is prepared to disclose any other counsellors or professional persons that she has spoken to about these allegations. Not about any other issues she may have had … but that relates specifically to [the accused].”

21. Counsel for the accused then handed up a set of written submissions, together with some other documents. The written submissions dealt principally with the order sought in the Notice of Motion.

22. An adjournment was taken. Upon resumption counsel for the protected confider again informed the Court that the complainant was not willing to provide the names of the counsellors.

23. Her Honour responded:

“Her Honour:   Yes, OK then. I don’t propose having her called on a Basha. In my view, I cannot force her to answer questions disclosing that information. She has a right not to provide that information so I won’t be – I know you wanted to call her on a Basha on other matters, perhaps to do with the pretext call.

Counsel:   That was more a voir dire scenario your Honour. There were issues that I did wish to ask her.”

24. A further short adjournment was taken at the request of counsel for the accused who, upon resumption, informed her Honour that he wished to seek leave to appeal her Honour’s decision in relation to the Basha inquiry pursuant to s 5F of the Criminal Appeal Act.

25. There was further discussion. Her Honour said:

“I have rejected it [a reference to the holding of a Basha inquiry] on the basis that the complainant has, via [counsel] not voluntarily agreed to provide the name such as to arm you with the name to permit the seeking of leave to issue the subpoena, that your purpose on a Basha inquiry, as I understood it, is that what you wished to find out was the name of whom to issue the subpoena to, by virtue of her being on oath or affirmation, you asking a question that she, having indicated she doesn’t willingly provide that information, that I would then compel her to answer that question.”

26. Further discussion confirmed her Honour’s understanding that counsel for the accused wished to ask the protected confider on oath to provide the names of the counsellors.

27. Her Honour then said:

“And that is where I do not believe I have power. In my view a complainant has a common law power not to provide those names, a common law right to silence not to be compelled to provide that information, and in my view that right has not been abrogated by Division 2 Part 5 of the Criminal Procedure Act (sic).”

28. It can be seen from this exchange that her Honour was informing counsel of her likely ruling on the evidence which the protected confider would be obliged to give if called to the witness box.

29. Her Honour then confirmed with counsel for the applicant that the intended appeal was with respect to her Honour’s not allowing a Basha inquiry intended for that particular purpose. Counsel accepted that this was so.

“Interlocutory judgment or order” – Submissions

30. The Crown submitted that her Honour’s refusal to accede to the applicant’s request for a Basha inquiry (as it is convenient to call what was proposed by counsel for the accused), is not an “interlocutory judgment or order” within the meaning of that phrase in s 5F(3) of the Criminal Appeal Act.

31. The Crown submitted that the very nature of a Basha inquiry is such that it is both a procedural matter, and a matter incidental to the conduct of a fair trial, and that it is not a matter of substance, or which after a determination, a matter which cannot be revisited. The Crown submitted that it is not uncommonly the case that an application for a Basha inquiry might be denied at one stage of proceedings but granted later in the proceedings when particular issues emerged or became defined with greater clarify. The Crown submitted that in the circumstances here, there was no real difference between what happened and a ruling on evidence which is not a ruling which is capable of interlocutory challenge.

32. It submitted that her Honour’s ruling was not “… [a] decision of the Court which determines the proceedings [or an identifiable or separate part of them]” : see R v Steffan (1993) 30 NSWLR 633 at 636.

33. The applicant submitted that the Court would regard her Honour’s refusal to permit a Basha inquiry as an order within the meaning of s 5F(3) of the Criminal Appeal Act. The applicant pointed to the decision of this Court in Kocer v R [2006] NSWCCA 328 at [11]ff as authority for the proposition that where an adjudication has been made by the Court between parties to the proceedings resolving a disputed issue, the Court has made an order.

34. The applicant seems to submit that, in keeping with the decision in Kocer, an order made in the course of an action (or a trial) can be interlocutory where it concludes the fate of a particular application, but does not conclude in any final way the rights of the parties. Here the applicant has submitted that the ruling given by her Honour, namely that she would not permit a Basha inquiry to be held, was a determination by the Court of the particular application which had been brought.

Discernment

35. It is convenient to commence by noting a reference to what was said by Rothman J in Kocer at [22], because it provides an important context against which to consider the applicant’s submissions.

36. His Honour said (with the agreement of McClellan CJ at CL and Buddin J) this:

“22.   It is important to understand that the legislative intention is that criminal trials will be dealt with by the trial Judge without undue interference by interlocutory appellate procedures. There are a limited number of exceptions in which the legislature has determined that there may be an appeal, because with the effect of the order on the trial as a whole and, usually, the absence of appeal rights, the trial proceeds to its conclusion.

23.   … It cannot be stressed too highly that the trial should proceed without interruption by interlocutory appeals, except where to do otherwise may permanently affect the rights of a party or so inconvenience the trial that an interruption is necessary, in the interests of justice.”

37. The power to order a Basha inquiry resides in a trial Judge for the purpose of ensuring that a fair trial takes place. It is one of a number of inherent powers available to a trial Judge, which have the same end.

38. Ultimately, a question as to whether or not there has or has not been a fair trial, and whether the verdict which has been returned can be impugned on the basis of some unfairness in the trial process, is a matter which is the subject of an appeal to this Court. Whether or not a trial was or was not fair is a matter which has to be viewed in light of the whole of the trial. Whether or not a trial Judge should or should not have ordered a Basha inquiry as part of an attempt to ensure a fair trial, is a matter which seems to me is one which can usually only be viewed in the context of the completed trial. There may be some exceptional cases where unfairness of the trial process can be readily identified at an earlier point in time, but that is not so here.

39. As well, I accept, as the Crown has pointed out, that a refusal to permit a Basha inquiry is a ruling which can be revisited by the trial Judge, at the request of any party in the course of the trial, if circumstances permit.

40. Accordingly, it seems to me that there is much to be said for the Crown’s submission that the refusal by her Honour to permit such an inquiry was not, and could not be, an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act, and was akin to a ruling on evidence.

41. However, this application does not call for a final determination of that issue in the abstract because, having regard to what in fact occurred, I am satisfied that there was no interlocutory judgment or order made by the trial Judge capable of being the subject of interlocutory appeal.

42. This is so for these reasons:

1. the only order which the trial Judge was actually asked to make was that proffered by the Notice of Motion;

2. in the course of the application, that order was not pressed by counsel for the accused. No doubt counsel recognised the need to demonstrate that the document or documents sought to be produced by the proposed subpoena would “… have substantial probative value”: s 299D(1)(a) Criminal Procedure Act; and

3. all that counsel for the accused did here was to ask the trial Judge to permit him to ask questions of the protected confider. The trial Judge was not asked to make an order requiring the protected confider to enter the witness box to give evidence: see s 36 Evidence Act. Nor was the trial Judge asked to issue a subpoena to the protected confider to give evidence. In short, the procedure undertaken by counsel for the accused did not have the requisite character to give rise to an interlocutory judgment or order of a kind susceptible to an application under s 5F to this Court.

43. In truth, counsel for the accused was asking to be allowed, before the trial commenced, to interrogate a witness, the protected confider, about a matter not referred to in her statement, in circumstances where she had indicated that she was not prepared to disclose that material. This request lacked any formality, was unsupported by evidence demonstrating the utility of such procedure, and was not the subject of any demonstrated power in the Court to require the disclosure of the information, even if the protected confider was sworn to give evidence.

44. As it was left, all the trial Judge did was to indicate what she would do or not do, in the event that questions were asked of the protected confider. It was nothing more than an indicative ruling on evidence.

Conclusion

45. I am unpersuaded that, in light of the peculiar circumstances here, there is any interlocutory judgment or order upon which the applicant can fasten the jurisdiction given to this Court under s 5(3) of the Criminal Appeal Act.

46. Accordingly, I concluded that leave to appeal should be refused.

Orders

47. These are the orders which I proposed, and which the Court made on 14 March 2017:

1. Application for Leave to Appeal filed 7 December 2016 be dismissed;

2. Application for Leave to appeal filed 1 February 2017 be dismissed.

48. BEECH-JONES J: The background to the application is set out in the judgment of Garling J.

49. The first issue that arose in this application was whether the subject matter of the applicant’s complaint concerned an “interlocutory judgment or order” (Criminal Appeal Act s 5F(3)). Whether a decision or determination by a trial judge amounts to an interlocutory “order” capable of grounding an appeal under s s5F(2) or (3) requires a consideration of the “character and [legal] effect of the decision” rather than the precise words used by the judicial officer (R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304 per Gleeson CJ; “Bozatsis”). Thus a ruling on evidence made during the course of a trial is not considered to be an order or judgment of the Court (R v Steffan). Such a ruling lacks any finality (Bozatsis at 303.7) in the sense that it neither determines some part of the proceedings nor amounts to a “command that something be done or not be done” (R v F [2002] NSWCCA 125 at [11] per Wood CJ at CL). However in Bozatsis a ruling by a trial judge that he would not permit the Crown to adduce any evidence was found to constitute an order capable of supporting an appeal by the Crown against an interlocutory order because the trial judge’s ruling was “in substance, refusing to permit the Crown to seek to make [its] case” (Bozatsis at 304.2 per Gleeson CJ).

48. This application was framed as an application for leave to appeal from a refusal of a trial judge to “order” a “Basha inquiry”. The phrase “Basha inquiry” derives it names from the observation of Hunt J in R v Basha at 339 that he and other judges had on occasions adopted the practice of “permit[ing] an accused to cross examine a new witness on a voir dire before he was called in the trial”. The authority to do so appears to be the Court’s obligation to ensure a fair trial (id). However neither in Basha or in any of the other cases to which this Court was taken which discussed the concept of a Basha inquiry was there any necessity to identify precisely what “order”, if any, a Court makes in determining that such an inquiry will be conducted or in giving effect to that determination.

49. A consideration of the variety of circumstances in which a Basha inquiry may be undertaken and the various steps involved in conducting such an inquiry confirms that there is no single answer to the question whether or not a determination to hold such an inquiry or a refusal to do so amounts to an “order” sufficient to ground an appeal under s 5F(2) or (3) of the Criminal Appeal Act.

50. Thus, it is not uncommon for a trial judge to direct the undertaking of a Basha inquiry during the course of a trial in respect of a new witness. Such an inquiry might involve no more than the jury being absent from the Court room while the witness answers various questions designed to clarify some matter. Under that scenario the only step taken by the trial judge is to ask the jury to leave the Court room. Neither the taking of that step nor the refusal to take that step constitutes an interlocutory order. The character and legal effect of the decision does not have any final character. The matter can be re-agitated at a later time in the trial. This discussion does not exhaust the manner in which a Basha inquiry may be conducted during a trial but it suffices to demonstrate that the conduct of such an inquiry does not necessarily involve the making of an order.

51. A trial Judge may also direct that a Basha inquiry take place prior to the jury being empanelled and the trial commencing. Sometimes this will merely involve the Court convening and the Crown arranging for a witness to attend voluntarily. The witness is sworn or affirmed and then cross examined on certain identified topics. Leaving aside any particular direction that the trial judge may give during the course of the examination, this process does not usually involve the Court undertaking any step that has the character of an interlocutory order. However in other cases it may be necessary for the Court to grant leave for the issue of a subpoena to secure the attendance of the witness who is to be examined or, if the person is “present at the hearing”, the Court may make an order under s 36(1) of the Evidence Act requiring them to give evidence. In these cases the granting of leave to issue the subpoena or the making of an order under s 36(1) of the Evidence Act (or the refusal to so order) constitutes an interlocutory order capable of grounding an appeal under s 5(3)(a) or (b) of the Criminal Appeal Act. In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 this Court entertained an appeal by the Crown under s 5F(2) against a refusal by a Magistrate to set aside a subpoena (see also KS v Veitch [2012] NSWCCA 186). It follows that in some cases it may be evident that the “character and effect” of a determination by a trial judge that a Basha inquiry will not be conducted prior to a trial amounts in substance to a refusal to compel the attendance of a witness to give evidence and is thus capable of grounding an appeal under s 5F(2).

52. In this case, nothing in the exchange that occurred between the Bench and Counsel set out in the judgment of Garling J ever crystallised to the point that the refusal by the trial judge to conduct a Basha inquiry amounted to a refusal to make an order of the kind referred to in s 5F(3)(a). At the hearing of this application Counsel for the applicant contended that the refusal of the trial judge to allow the victim to be cross examined as to the name of her counsellor had the “character and effect” of denying to his client any possibility of obtaining a grant of leave under s 298(1) of the Criminal Procedure Act to issue a subpoena for the production of the counsellors documents. I do not accept that that was the inevitable effect of the trial judge’s conclusion. Rather, the position is that counsel for the applicant did not pursue any application for leave under s 298(1) but instead engaged in a dialogue with the trial judge about an appeal. Of course if counsel had made an application under s 298(1) and been refused then there would be no doubt that the refusal could have been the subject of an application under s 5F(2) of the Criminal Appeal Act.

53. In these circumstances I was not satisfied that this application involved any appeal to this Court “against an interlocutory judgment or order given or made in … proceeding” (s 5F(3)(a)).

54. Accordingly I joined in the orders of the Court made on 14 March 2017.

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Amendments

16 March 2017 - Review amendment.

16 March 2017 - Review amendment

16 March 2017 - Minor typographical errors

03 May 2017 - Correction of reference [36]

Decision last updated: 03 May 2017