R v B (No.2) - [2010] QDC 417

DISTRICT COURT OF QUEENSLAND

CITATION:

R v B (No 2) [2010] QDC 417

PARTIES:

B
(Applicant/Accused)

v

The Queen
(Respondent)

FILE NO:

Indictment 176/2009

DIVISION:

Criminal

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

26 August 2010

DELIVERED AT:

Townsville

HEARING DATE:

11 August 2010

JUDGE:

Durward SC DCJ

ORDERS:

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 the ‘Basha’ hearing witnesses other than those upon whom it intends to rely in the trial.

CATCHWORDS:

CRIMINAL PROCEDURE – COMMITTAL -DANGEROUS OPERATION OF MOTOR VEHICLE – Medical documentation tendered in bulk at committal hearing without analysis or testimony – potential defence of non-insane automatism raised in Record of Interview – prosecution post-committal obtain medical report intended to be relied on in trial in rebuttal of defence – ‘Basha’ hearing ordered – disagreement as to witnesses.

PRACTICE AND PROCEDURE – ‘BASHA’ HEARING – NATURE AND SCOPE – HISTORICAL ANALYSIS – nature and scope generally of ‘Basha’ hearing – whether in Queensland there are limits on scope and conduct in District Court – whether proposed new statutory committal regime likely to give rise to greater scope and frequency – judicial control of use and scope.

PRACTICE AND PROCEDURE – BASHA HEARING – direction to conduct ‘Basha’ hearing – parties unable to agree on witnesses or scope of evidence – whether hearing includes broad expert opinion on factual matters only – whether obligation on prosecution to call on hearing every witness required by defence – whether prosecution obliged to call only those expert witnesses upon whom it intends to rely in trial – whether particular circumstances take hearing in this case beyond general scope.

LEGISLATION

CASES

JOURNALS and REPORTS

Sections 104 & 108 Justices Act 1886; Part 11 Civil and Criminal Jurisdiction Reform & Modernisation Amendment Act 2010.

R v Basha (1989) 39 A Crim R 337; R v Harris; ex parte Eastway (1985) 39 SASR 203; R v Walden (1986) 23 A Crim R 242; DPP (C’th) v Bayly (unrep. SCSA BC9405562 04.Nov 1994); R v Sandford (1994) 33 NSWLR 172; DPP v Denysenko (unrep. SCVCA BC9700373 24 Feb 1997); R v Robinson (2007) QCA 349.

‘Review of the civil and criminal justice system in Queensland’ December 2008 (Hon Martin Moynihan AO QC); “Changes to Criminal Procedure in NSW’ (1997) 21 Crim LJ 213 (Shaw QC & Schurr); ‘The Committal – Some Recent Developments and Findings’ (1999) 8 (3) JJA 160 (Willis); Kennedy Allen ‘Justices Act’ 258.

COUNSEL:

JR Baulch SC for applicant/accused
M Cowen for respondent

SOLICITORS:
Legal Aid Queensland for applicant/accused
Office of Director of Public Prosecutions for respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v B (No.2)

Details

AGLC: R v B (No.2) [2010] QDC 417
Case: [2010] QDC 417
Decision Date: 26 August 2010

CaseChat Overview and Summary

In the case of R v B (No.2), the respondent, B, was facing a committal hearing for a dangerous operation of a motor vehicle. The court was tasked with determining the admissibility and scope of medical documentation tendered in bulk without prior analysis, as well as the potential defence of non-insane automatism raised by the respondent. Additionally, the court had to address a dispute regarding the witnesses to be called during a 'Basha' hearing, which was ordered after the prosecution obtained a medical report intended to be used in rebuttal of the defence at trial.

The central legal issues revolved around the nature and scope of 'Basha' hearings in Queensland, particularly in the context of the District Court. The court had to consider whether there were any limitations on the scope and conduct of such hearings in this jurisdiction, as well as whether the proposed new statutory committal regime would likely increase the scope and frequency of these hearings. The court also needed to assess the judicial control over the use and scope of evidence during a 'Basha' hearing and determine whether the prosecution was obliged to call every witness required by the defence or only those expert witnesses upon whom it intended to rely in the trial.

The court's reasoning was grounded in an analysis of the historical scope and conduct of 'Basha' hearings in Queensland. It found that, while there were general principles governing the scope and conduct of such hearings, the specific circumstances of this case warranted a particular approach. The court held that the accused was entitled to call evidence during the 'Basha' hearing, but it refused to require the prosecution to call witnesses other than those upon whom it intended to rely in the trial. The court determined that the scope of the 'Basha' hearing in this case should be limited to the presentation of expert opinions on factual matters only, and that the prosecution was not obliged to call every witness required by the defence.

The court's orders granted the application to the extent that the accused could call evidence on the 'Basha' hearing, but refused the application in respect of a requirement for the prosecution to call on the 'Basha' hearing witnesses other than those upon whom it intended to rely in the trial. This decision provides guidance on the scope and conduct of 'Basha' hearings in Queensland, particularly in relation to the presentation of expert evidence and the obligations of the prosecution in such hearings.

Orders

Orders of the court

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 the ‘Basha’ hearing witnesses other than those upon whom it intends to rely in the trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v B (No 2) [2010] QDC 417
PARTIES:	B (Applicant/Accused) v The Queen (Respondent)
FILE NO:	Indictment 176/2009
DIVISION:	Criminal
PROCEEDING:	Pre-trial application
ORIGINATING COURT:	District Court, Townsville
DELIVERED ON:	26 August 2010
DELIVERED AT:	Townsville
HEARING DATE:	11 August 2010
JUDGE:	Durward SC DCJ
ORDERS:	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 the ‘Basha’ hearing witnesses other than those upon whom it intends to rely in the trial.
CATCHWORDS:	CRIMINAL PROCEDURE – COMMITTAL -DANGEROUS OPERATION OF MOTOR VEHICLE – Medical documentation tendered in bulk at committal hearing without analysis or testimony – potential defence of non-insane automatism raised in Record of Interview – prosecution post-committal obtain medical report intended to be relied on in trial in rebuttal of defence – ‘Basha’ hearing ordered – disagreement as to witnesses. PRACTICE AND PROCEDURE – ‘BASHA’ HEARING – NATURE AND SCOPE – HISTORICAL ANALYSIS – nature and scope generally of ‘Basha’ hearing – whether in Queensland there are limits on scope and conduct in District Court – whether proposed new statutory committal regime likely to give rise to greater scope and frequency – judicial control of use and scope. PRACTICE AND PROCEDURE – BASHA HEARING – direction to conduct ‘Basha’ hearing – parties unable to agree on witnesses or scope of evidence – whether hearing includes broad expert opinion on factual matters only – whether obligation on prosecution to call on hearing every witness required by defence – whether prosecution obliged to call only those expert witnesses upon whom it intends to rely in trial – whether particular circumstances take hearing in this case beyond general scope.
LEGISLATION CASES JOURNALS and REPORTS	Sections 104 & 108 Justices Act 1886; Part 11 Civil and Criminal Jurisdiction Reform & Modernisation Amendment Act 2010. R v Basha (1989) 39 A Crim R 337; R v Harris; ex parte Eastway (1985) 39 SASR 203; R v Walden (1986) 23 A Crim R 242; DPP (C’th) v Bayly (unrep. SCSA BC9405562 04.Nov 1994); R v Sandford (1994) 33 NSWLR 172; DPP v Denysenko (unrep. SCVCA BC9700373 24 Feb 1997); R v Robinson (2007) QCA 349. ‘Review of the civil and criminal justice system in Queensland’ December 2008 (Hon Martin Moynihan AO QC); “Changes to Criminal Procedure in NSW’ (1997) 21 Crim LJ 213 (Shaw QC & Schurr); ‘The Committal – Some Recent Developments and Findings’ (1999) 8 (3) JJA 160 (Willis); Kennedy Allen ‘Justices Act’ 258.
COUNSEL:	JR Baulch SC for applicant/accused M Cowen for respondent
SOLICITORS:	Legal Aid Queensland for applicant/accused Office of Director of Public Prosecutions for respondent