R v Bunting & Others (No 2) No. Sccrm-01-205

[2003] SASC 250

R v BUNTING & OTHERS (NO 2)
[2003] SASC 250

Criminal:  Reasons for Rulings

1. MARTIN J           John Justin Bunting, Mark Ray Haydon and Robert Joe Wagner were charged jointly with 11 counts of murder alleged to have been committed between December 1995 and May 1999.  In addition, Bunting and Haydon were charged with a further count of murder alleged to have been committed in 1992 and Wagner was charged with Assisting Offenders in connection with that crime of murder.  Each accused sought an order staying the trial.  I refused the applications and I now set out my reasons for those rulings.

2. The accused were arrested and charged with 10 of the crimes of murder in May 1999.  The committal proceedings (“preliminary examination”) commenced on 13 December 2000 and concluded on 4 July 2001.  All accused were committed for trial on all 10 charges.

3. At the time of the preliminary examination, James Spyridon Vlassakis was jointly charged with the accused with five of the ten counts of murder. On 21 June 2001, prior to the conclusion of the preliminary examination, Vlassakis was presented in the Supreme Court on an Information charging him with four of those five counts of murder.  He pleaded guilty to those four counts.  The Crown discontinued the fifth count of murder against Vlassakis in the Magistrates Court.

4. Following the pleas of guilty by Vlassakis, counsel for the Director of Public Prosecutions (“the Director”) advised the Magistrate conducting the preliminary examination that consideration was being given to the possibility of Vlassakis giving evidence for the prosecution against the accused.  As a consequence, counsel for the accused sought an adjournment of the preliminary examination until the Director had made a decision as to whether Vlassakis would be a witness.  That application was opposed by the Director on the basis that considerable time would be required in order to determine whether Vlassakis would be a witness.  Further, if a decision was made to present Vlassakis as a witness, he could not give evidence until he had been sentenced.  Against the background of the time already taken by the proceedings, the Director opposed the adjournment.  The Magistrate declined to adjourn pending the resolution of matters pertaining to Vlassakis.

5. As mentioned, the accused were committed for trial on 4 July 2001.  Police commenced interviewing Vlassakis on 24 July 2001.  That interview concluded on 28 September 2001.  It comprises almost 2000 pages of transcript.  According to the affidavit of Mr Simon Smart, a legal practitioner employed in the Office of the Director, Vlassakis did not agree to plead guilty until June 2001 and a decision as to whether Vlassakis would be called as a witness was only made after the police had interviewed him following his pleas of guilty.  Apparently the decision was made prior to the conclusion of the interview.  By letter of 30 August 2001 the Director advised the accused through their solicitors of the decision to call Vlassakis.

6. The first Information filed in the Supreme Court on 13 August 2001 charged the accused with the 10 counts of murder in respect of which they had been committed for trial.  On 30 November 2001 the Director filed a new Information charging three additional offences.  Bunting and Haydon were charged with the murder of Clinton Trezise alleged to have been committed between 9 July 1992 and 31 August 1992 (Count 1).  Wagner was charged with Assisting Offenders in connection with that crime (Count 2).  In addition, all accused were charged jointly with the murder of Thomas Trevilyan, alleged to have been committed between 3 November 1997 and 6 November 1997 (Count 7).   The additional three counts were laid ex officio as a preliminary examination had not been conducted with respect to those charges.  There was no suggestion that the Director did not have the power to file the ex officio Information.

7. Against that background, the accused have applied for orders that the trial of Counts 1, 2 and 7 be permanently stayed as an abuse of process or, alternatively, that the trial on those counts be stayed until such time as a preliminary examination has been conducted with respect to those charges and the accused have been committed for trial by a magistrate following such preliminary examination.  In addition, Haydon has sought an order that all 12 counts of murder be stayed until the accused “has been afforded a proper committal according to law.”  In essence, counsel for Haydon argued that there should be a further preliminary examination with respect to the original 10 counts of murder.  Underlying all applications was an appeal to the overriding duty of the trial court to prevent an abuse of its processes and an assertion that to proceed with a trial in the current state of affairs would be to deprive the accused of their right to a fair trial.

8. As to the basis upon which Haydon asserted that the circumstances of the preliminary examination with respect to the original 10 counts of murder were such as to invoke the relevant principles, counsel put the following propositions.  First, the evidence of Vlassakis has brought about such a fundamental change in the nature of the case against Haydon that the inability to apply to cross-examine Vlassakis during the preliminary examination has had the effect of depriving Haydon of “the right to have a full committal according to law and of all the rights, benefits and advantages that such a full committal would have provided to him”.  Secondly, Haydon was deprived of the opportunity of seeking to cross-examine other witnesses concerning matters that became significant after the content of the evidence intended to be led from Vlassakis was revealed.  Thirdly, irrespective of the advent of evidence from Vlassakis, as the prosecution had not complied with its duty of disclosure pursuant to s 104 of the Summary Procedure Act 1921 (“the Act”) and  the Magistrate had erred in a number of respects, Haydon was deprived of “the rights, benefits and advantages that would have flowed to him had there been a proper application of the law in the Committal”.  In essence counsel argued that the preliminary examination was so defective “that the accused was not afforded those legitimate benefits and advantages that he was entitled to have from the proceedings” and, therefore, to proceed with the trial would amount to an abuse of process.

9. Counsel for the other accused did not seek to argue that a stay of the original 10 counts was justified.

10. With respect to the charging of the additional two counts of murder on an ex officio Information without the conduct of a preliminary examination, counsel for Haydon submitted that, in the particular circumstances, I should determine that the filing of the ex officio Information was in itself an abuse of process.  Counsel contended that, once charged, the accused had a fundamental right to a preliminary examination and to deprive him of that right was an abuse of process.  Leaving aside the question of cross-examining witnesses, the accused was deprived of the opportunity of submitting before the Magistrate that the evidence was not sufficient to put the accused on trial and of challenging by way of judicial review a finding by a magistrate to the contrary.  As counsel put it, Haydon was entitled to “two bites of the cherry”.  Neither counsel for the other accused supported this submission.  In my opinion there is no substance in this complaint.

11. Counsel for Haydon also argued that the failure to conduct a preliminary examination caused prejudice to Haydon because he was unable to seek to cross-examine prosecution witnesses and, therefore, a trial would necessarily be unfair and amount to an abuse of process.  However, as will appear later in these reasons, in view of the approach that I indicated I would take to the question of cross-examining such witnesses prior to the empanelling of the jury (a “Basha inquiry”), counsel was unable to identify any prejudice to the accused merely by reason of the loss of an opportunity to seek to cross-examine witnesses at a preliminary examination.  Having heard my view as to a Basha inquiry, counsel for Bunting and Wagner effectively conceded that, applying the settled principles, their applications could not succeed.

    Preliminary Examination

12. The procedure at a preliminary examination and the approach of the Magistrate to the question whether there is sufficient evidence to put an accused on trial is governed by ss 105-107 of the Act.  That procedure occurs against the background of s 104 which directs that at least 14 days before the commencement of the preliminary examination, the prosecutor must file in court and serve upon the accused statements of witnesses and copies of any documents upon which the prosecutor relies as tending to establish guilt.  In addition, the prosecutor is required to file a document describing other material upon which the prosecutor relies and describing any other material relevant to the charge that is available to the prosecution.  Sub-s(2) recognises that relevant material may come into the possession of a prosecutor after the time appointed for the filing in court of that material.  In such circumstances the prosecutor must comply with the filing and serving requirements as soon as practicable after the material comes into the possession of the prosecutor.

13. Section 106 directs that the evidence of the witnesses for the prosecution will be given by way of tendering the statements of the witnesses.  A witness cannot give oral evidence unless the court grants leave.  Section 106(2) directs that the court will not grant leave to call a witness for oral examination “unless it is satisfied that there are special reasons for doing so”.  Sub-section (3) specifies that in determining whether special reasons exist, the court must have regard to:

    “(a)the need to ensure that the case for the prosecution is adequately disclosed; and

    (b)the need to ensure that the issues for trial are adequately defined; and

    (c)the Court’s need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and

    (d)the interests of justice,

    but if the witness is the victim of an alleged sexual offence or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so.”

14. The ultimate duty of a magistrate is to consider whether the evidence “is sufficient to put the defendant on trial for an offence”.  Section 107 identifies “principles” which “govern” the Court’s approach to evidence at a preliminary examination.  In substance, questions of admissibility and credit are removed from the decision-making process.  Unless the evidence is “plainly inadmissible”, a magistrate must reserve any dispute as to admissibility for determination by the court of trial.  Section 107(1)(a) provides that:

    “(a)evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, the evidence, if accepted, would prove every element of the offence”.

15. The preliminary examination was attended by a number of difficulties.  The prosecution produced a very large volume of material with which the Magistrate and those representing the accused were required to become familiar.  The transcript discloses that a considerable amount of material was provided during the course of the preliminary examination.  No doubt the ongoing provision of material caused difficulties for the accused.  From time to time the Magistrate granted adjournments in order to enable those representing the accused to consider additional material.  The course of the hearing was frequently interrupted by arguments concerning suppression orders.

16. Although a considerable amount of material was provided to the Court and the accused during the course of the preliminary examination, the failure to provide that material prior to the commencement of the hearing may not have been a breach of s 104.  As mentioned, if the material comes into the possession of the prosecutor after the time appointed for the filing and serving of that material, it is the duty of the prosecutor to file and serve the material as soon as practicable after it comes into the prosecutor’s possession:  s 104(2).  In view of the volume and nature of the evidence presented by the prosecution, it would not be surprising if investigations and preparation for presentation of evidence in court were ongoing and material was coming into the possession of the prosecutor as the preliminary examination proceeded.

17. A mere reading of the transcript does not provide a sufficient basis for a finding that the prosecution failed to comply with s 104.  In order to determine such an issue, it would be necessary to receive evidence as to the dates upon which relevant material or statements were filed and served and to hear evidence as to when the material and statements came into the possession of the prosecutor.  Even if it was established that the prosecution failed to comply with s 104, the circumstances of the failure and the nature and extent of any prejudice suffered by an accused as a consequence of the failure would require careful consideration. Potentially, a rather large inquiry could be involved.  The material before me does not enable me to make any findings with respect to these issues.  Notwithstanding my clear indication during submissions that findings were not possible in the absence of further evidence, no application was made to produce any evidence relevant to these issues.

18. Significantly, counsel for Haydon was unable to identify any specific prejudice occasioned to Haydon by reason of the alleged failure to comply with s 104 which was not subsequently cured during the course of the preliminary examination or which could not be cured by the calling of witnesses in this Court in a Basha inquiry prior to the empanelling of the jury.  In referring to such prejudice, I leave aside the complaint by counsel that the deficiencies and errors in the preliminary examination effectively deprived Haydon of the opportunity of having all relevant evidence before the Magistrate for consideration of a submission that the evidence was not sufficient to put the accused on trial with respect to some or all of the charges.

19. As to the assertion that the preliminary examination was attended by erroneous rulings in connection with applications to cross-examine various witnesses, counsel for Haydon was again unable to identify any specific prejudice which could not be cured by the calling of the witnesses on a Basha inquiry.  If the test for the calling of the witnesses on a Basha inquiry is the same or less stringent than the test that the Magistrate was obliged by law to apply in determining whether special reasons existed, counsel was unable to identify any disadvantage suffered by the accused.  The same observation applies to the complaint about failures to adjourn and, in particular, the refusal to adjourn the preliminary examination until a decision had been made as to whether Vlassakis was to be a Crown witness.  This is not a case in which any accused asserts that the delay between the preliminary examination and the Basha inquiry has caused irreparable prejudice.  For example, it is not suggested that cross-examination at the preliminary examination may have elicited information requiring further investigations which are now not possible or may have identified a potential witness who is now deceased or unavailable.

20. In my opinion, the material before me does not justify a conclusion that the preliminary examination was attended by such errors that, in essence, Haydon was deprived of his right to have a preliminary examination conducted according to law.  Further, even if the committal was attended by errors, no prejudice has been demonstrated that will give rise to an unfair trial or that cannot be cured by the adoption of appropriate procedures before the jury is empanelled.

    Absence of Preliminary Examination

21. During the preliminary examination, although no charges had been laid with respect to the deaths of Trezise and Trevilyan, the Crown indicated to the court that evidence concerning those deceased persons and the circumstances of their deaths might be led at trial.  Statements were tendered from a number of witnesses relevant to those deaths and leave was granted to cross-examine some of those witnesses.  In addition, the accused had access to the Coroner’s files in relation to each deceased and to a missing person’s file concerning Trezise.

22. Prior to the availability of evidence from Vlassakis, it is not surprising that charges had not been laid against any accused with respect to the deaths of Trezise and Trevilyan.  The body of Trezise was found buried in a shallow grave at Lower Light.  Trevilyan was found hanging from a tree in the Adelaide Hills.  By way of contrast, the bodies of two of the other 10 deceased were found buried in a hole at the rear of premises previously occupied by Bunting, and the remaining eight bodies were found in barrels stored in a safe of former bank premises at Snowtown.  Independently of Vlassakis, the prosecution intends to lead evidence connecting the accused to the premises at Snowtown and the barrels. The evidence of Vlassakis is critical to the prosecution cases in respect of Trezise and Trevilyan.

23. In considering whether an abuse of process arises by reason of the failure to conduct a preliminary examination with respect to the charges relating to the deaths of Trezise and Trevilyan, it is appropriate to take into account the events that occurred during the preliminary examination.  It is also relevant to note that, apart from the evidence of Vlassakis, the additional material that has been provided since the preliminary examination in connection with those deaths primarily concerns relatively formal matters.  Again, apart from the loss of opportunities to submit no case to answer and to have a decision by the Magistrate reviewed on judicial review, counsel for Haydon was unable to point to any specific prejudice caused by the inability to cross-examine Vlassakis and other witnesses relevant to the matters of Trezise and Trevilyan that could not be cured by examination of those witnesses on a Basha inquiry.

    Principles

24. The purposes and importance of a preliminary examination have been recognised in a number of authorities.  In Barton v The Queen (1980) 147 CLR 75, the High Court was concerned with ex officio indictments filed by the Attorney-General for New South Wales.  Two of the indictments were filed before the conclusion of the preliminary examination thereby depriving the appellants of the possibility that the Magistrate would find that they should not be put on trial.  One of the indictments concerned charges in respect of which no preliminary examination had commenced (the “Bounty indictment”).  The High Court confirmed the power of the Attorney-General to present ex officio indictments and held that the decision of the Attorney-General was not examinable by the courts.  However, the Court also confirmed the power of a court to stay such proceedings if a stay was necessary in order to prevent an abuse of process or the occurrence of an unfair trial.

25. In a joint judgment with which Aickin J agreed, Gibbs ACJ and Mason J observed that preliminary examinations constitute an important element in the protection which the criminal process gives to an accused person.  Their Honours recognised, however, that the scope of the protection is diminished to some extent by the power of the Attorney-General to file an ex officio indictment after a magistrate has found there is no prima facie case or has discharged the accused.  In response to a submission that it was sufficient to supply particulars and deliver copies of proofs of evidence, their Honours noted that in the absence of any preliminary examination an accused is denied knowledge of what Crown witnesses say on oath, the opportunity of cross-examining such witnesses, the opportunity of calling evidence in rebuttal and the possibility that the Magistrate will not commit the accused for trial.  They said that the deprivation of these advantages is a “serious departure from the ordinary course of criminal justice”.  In a passage often cited their Honours expressed the view that “a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair” (pp 100-101).  Their Honours then addressed the balancing process which must be undertaken in deciding whether a trial should proceed in the absence of an antecedent preliminary examination (pp 101-102):

    “However, in deciding whether the trial on the Bounty indictment should proceed in the absence of a preliminary examination, we have to determine where on balance the interests of justice lie.  We must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused.  The nature of the charge (as in Mylius) or some other exceptional circumstance may justify the suggested departure from the ordinary course of criminal justice.  The reasons given by the Attorney-General to the magistrate through Mr. Hughes Q.C. for dispensing with the committal proceedings on the Bounty indictment centre very largely on the desirability of bringing the case to trial with the least possible delay, a very long time having elapsed since the informations were initially laid in April 1974 and since extradition proceedings were first initiated in Paraguay in November 1974, and the difficulties associated with securing attendance of overseas witnesses at committal proceedings and at a trial, both of which are estimated to take a long time.

    On the other hand, the principal offence charged in the Bounty indictment is that of conspiracy to cheat and defraud.  The problems associated with the offence of conspiracy are well known.  They are not diminished in this case by the nature of the particulars which have been supplied by the Crown.  The facts alleged are complex and, on the face of it, much is to be said in favour of the submission by Gruzman’s counsel that committal proceedings are needed to clarify some elements in the case, particularly the suggestion that more than conspiracy is alleged.

    It is, however, premature to arrive at a final conclusion on the materials before us.  Essentially the case has been argued on the footing that the facts will be examined later in the event that the Court is found to have power to quash the indictment or to stay proceedings.  At this stage it is sufficient to say that the Supreme Court has power to stay proceedings on the information until a preliminary examination takes place.  Whether such a stay should be granted depends upon a weighing up of the relevant interests which are at stake – on the one hand, the accuseds’ interest in obtaining a fair trial, and on the other hand, the Crown’s interest in bringing the accused to trial on serious charges which will require to be proved by the testimony of overseas witnesses.”  (footnote omitted)

1. As to the indictments in respect of which a preliminary examination had almost been completed, after engaging in the balancing process their Honours concluded that the circumstances did not disclose either an abuse of process or that the accused had suffered such prejudice as to warrant a stay of proceedings.

2. Stephen J expressed the view that the fair trial of an accused does not require as an “essential pre-requisite” that it should be preceded by a preliminary examination.  Recognising that examinations are an important part of the protection ordinarily afforded to an accused, his Honour observed that the absence of those proceedings will always call for a careful evaluation of the circumstances in order to ensure that consequent prejudice to the accused does not deprive the accused of a fair trial.  His Honour referred to the need to analyse the detriment and noted that the most obvious detriment is the loss of opportunity of being discharged by the committing Magistrate.  In the particular circumstances of the matter under consideration, his Honour considered that the more serious detriments were the loss of opportunity of gaining relatively precise knowledge of the case, of hearing Crown witnesses give evidence on oath and of testing the evidence by cross-examination.  His Honour also recognised the ability of the court to reduce the deleterious effects, but noted that the loss of opportunity to cross-examine Crown witnesses before the trial would be “irremediable”. Stephen J also identified the need to engage in a balancing process.

3. Murphy J indicated his general agreement with Wilson J.  However, his Honour added some observations about both the desirability of preliminary examinations and the problems associated with the existing procedure in New South Wales which required oral presentation of the evidence of all witnesses.  His Honour recognised that in other jurisdictions it was possible for a defendant to be committed for trial on the basis of written statements.

4. Wilson J said that he was unable to agree with Gibbs ACJ and Mason J that a trial held without an antecedent preliminary examination, unless justified on strong and powerful grounds, must necessarily be considered unfair.  Referring to the indictment in respect of which no preliminary examination had occurred, his Honour said (p 111):

   “As I have already indicated, I am unable on the materials before us to discern any basis on which it can be said that to proceed to trial on the Bounty indictment would constitute an abuse of the process of the court.  I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused.  It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.  A defect of this kind will ordinarily reside in the nature and content of the charge or charges contained in a particular indictment in the circumstances of the case.  I find it more difficult to conceive of an abuse of process arising in cases based, not on a criticism of the charge itself, but on procedures that either have been or are proposed to be followed.  These matters, of course, can have an important influence on the fairness of the trial, but they are matters in respect of which an accused can be protected by appropriate decisions of the trial judge bearing on the conduct of the trial.” (my emphasis)

5. The importance of a preliminary examination was also emphasized by King CJ in R v Harry; Ex parte Eastway (1985) 39 SASR 203. In the process of referring to the observations of the High Court in Barton, his Honour noted that the preliminary examination serves the purpose of acquainting an accused with the case to be made against that accused at trial and of affording the accused an opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial.  His Honour referred to an earlier judgment in which he said that a preliminary examination provides a valuable opportunity for the defence to explore issues and to investigate facts in a way which is not practical at trial.  King CJ remarked that the furnishing of additional statements, often at a late stage before the trial, “is a poor substitute for sworn statements which can be the subject of cross-examination.” (p 211)

6. The legislative schemes in force when Barton and Harry were decided were different from the provisions now governing the conduct of preliminary examinations in South Australia.  The New South Wales provisions required that all witnesses give oral evidence.  The Magistrate was required to consider whether the evidence was sufficient to warrant the appellant being put on trial or whether the evidence raised a strong or probable presumption of guilt.  In South Australia, provided notice was given, an accused was entitled to have prosecution witnesses called for cross-examination.  The Magistrate was required to consider issues of credibility and admissibility.  By way of contrast, as discussed earlier in these reasons, under the current South Australian provisions oral evidence is only permitted if a magistrate finds that special reasons exist for permitting that course and issues of credibility and admissibility are no longer the concern of the magistrate.

7. The effect of the change in the legislative scheme in South Australia was discussed by King CJ, with whom Duggan J agreed, in Goldsmith v Newman& The State of South Australia (1992) 59 SASR 404. His Honour observed that, subject to the modification brought about by the change in the scheme, the purposes and function of a preliminary hearing remain as discussed by his Honour in Harry.

8. As to the meaning of “special reasons”, King CJ said that such reasons involve more than the ordinary disadvantage which an accused will suffer from being deprived of the opportunity of cross-examining twice.  His Honour said that a desire to cross-examine for the purpose of affecting the credibility of a witness is not sufficient nor is deprivation of the opportunity of cross-examining a witness twice and thereby testing the ability of the witness to tell a consistent story.  A desire to conduct an exploratory cross-examination without a definite object based on solid grounds but in the hope of unearthing something which might assist the defence is, in the view of the Chief Justice, “plainly not sufficient”.  After observing that the interests of justice, including the establishment of the conditions for a fair trial, are the “paramount considerations”, his Honour gave guidance as to some of the circumstances which might amount to special reasons.  It is unnecessary to canvass those matters for present purposes.

9. Notwithstanding the legislative changes, preliminary examinations remain an important feature of the criminal justice process.  However, as a consequence of the changes, some of the disadvantages that members of the High Court perceived would ensue to an accused in the absence of a preliminary examination might not occur.  For example, as a general rule knowledge of what the Crown witnesses say on oath is now not provided by oral evidence.  It is provided by written statements.  An accused is not necessarily deprived of the opportunity of cross-examining because, even if a preliminary examination had occurred, special reasons may not have existed.  The prospects of successfully submitting that the evidence is insufficient to put the accused on trial are reduced because issues of admissibility and credibility are, in substance, withdrawn from the matters to be considered by the Magistrate.

10. Speaking generally, the Director having lawfully invoked the criminal jurisdiction by the filing of an Information, a court will not lightly stay the proceedings on the basis of a claim that to proceed would amount to an abuse of the processes of the court or would result in an unfair trial.  In Barton, Wilson J described the power to stay criminal proceedings when such action is necessary to meet an abuse of process as (p 116):

    “… a power which is reserved for use in exceptional cases, and particularly is this so when the abuse of process is alleged to flow from the exercise by an Attorney-General of a power which is granted to him by statute.”

11. Recognising the powers of a court to ensure fairness in a criminal trial, in Jago v The District Court of New South Wales (1989) 168 CLR 23 at 31, Mason CJ expressed the view that the power to order that a criminal prosecution be stayed would be used only in “most exceptional circumstances”. Gaudron J observed (p 76):

    “The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise.  The power is, in essence, a power to refuse to exercise jurisdiction.  It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised ... Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson, ‘sparingly, and with the utmost caution’.” (footnote omitted)

12. With these principles in mind, the Court must engage in a process of weighing the competing factors in order to determine “where on balance the interests of justice lie”: Barton at 101. The prejudice ensuing to an accused by reason of any defect in the conduct of the preliminary examination or by reason of the absence of a preliminary examination, and any consequent unfairness that might attend the trial, must be considered in conjunction with the “legitimate public interest in the disposition of charges of serious offences” and “the need to maintain public confidence in the administration of justice”: Walton v Gardiner (1993) 177 CLR 378 at 396.

13. In applying the relevant principles and in engaging in the balancing exercise, I do not overlook the point made by counsel that the accused does not seek a permanent stay of the proceedings, but a stay only for the purpose of enabling a preliminary examination on all charges to occur.  However, the public has a legitimate interest in the efficient disposition of criminal proceedings and, as the authorities to which I have referred demonstrate, it is a serious step to decline to exercise the jurisdiction of the court.

14. In the context of an assertion that the conduct of a preliminary examination has endangered the fairness of a trial, King CJ observed in Harry that the trial could be deferred until the prosecution did whatever might be necessary to ensure a fair trial.  His Honour noted that generally the defects can be remedied by the provision of full statements and copies of exhibits.  His Honour recognised, however, that in “extreme cases” there is undoubted power to stay proceedings thereby compelling the prosecution to lay a new Information in the Magistrates Court and to proceed to a fresh preliminary examination.  His Honour added (p 212):

    “It is hardly necessary to stress, however, the gravity of the extreme step of denying a trial on the Attorney-General’s Information and the seriousness of the risk of injustice which would be required to justify it.”

    Basha Inquiry

15. I have referred to a Basha inquiry.  This procedure, which enables the calling of witnesses prior to the empanelling of a jury, has its origins in the decision of the New South Wales Court of Criminal Appeal in R v Basha (1989) 39 A Crim R 337. Prior to the trial the prosecution provided an accused with a statement of an undercover officer who the prosecution intended to call at trial. The officer had not been called as a witness at the preliminary examination. The trial judge directed that the case be returned to a magistrate for a further committal proceeding. The Court of Criminal Appeal held that the trial judge had no power to give such a direction, but considered whether the proceedings should be stayed because, although no formal order was made by the trial judge granting a stay, the judge had clearly intended to stay the proceedings.

16. In a judgment with which Carruthers and Grove JJ agreed, Hunt J (as he then was) referred to more efficient means of overcoming the prejudice caused by the failure to call a witness at a preliminary examination other than by requiring fresh committal proceedings.  His Honour observed that in the past he had permitted an accused to cross-examine a new witness on a voir dire before the witness was called in the trial.  He noted that the court had been informed that other judges had also permitted such cross-examination prior to any evidence being called in the trial.

17. Hunt CJ at CL returned to the topic in R v Sandford (1994) 33 NSWLR 172. After referring to a criticism of his use in Basha of the term “voir dire”, his Honour said (p 181):

    “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 inappropriately 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 …

    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 …”

18. As to the test to be applied in determining whether to allow a Basha inquiry, in Director of Public Prosecutions (Cth) v Bayly (1994) 63 SASR 96 Olsson J acknowledged that, technically, a trial judge who entertains a Basha inquiry is not subject to the limitations imposed upon a magistrate when considering whether special reasons exist.  However, his Honour expressed the view that having regard to the intention of the legislature and the onus borne by an accused in seeking to examine a witness on a Basha inquiry, “it would be inappropriate simply to permit a wide ranging voir dire type inquiry for the asking”.  Subsequently in R v Kennedy (1997) 94 A Crim R 341, Hunt CJ at CL equated the test to be applied before permitting a Basha inquiry with that applicable to establishing the existence of special reasons at a preliminary examination.  His Honour said (p 352):

    “Solid grounds must be disclosed for supposing that the cross-examination [at the preliminary hearing] will make a significant contribution to the achievement of a fair trial.  The clear message conveyed by all of the cases which I have read is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not.  That is, incidentally, the test to be applied before permitting a Basha Inquiry, and it is not without significance that this Court’s decision in Basha has been cited as relevant to the interpretation of the similar South Australian provision.” (footnotes omitted)

19. Basha was decided in 1989.  The procedure envisaged by Basha was not a well recognised procedure in South Australia in 1992 when Goldsmith was decided.  It does not appear to have been contemplated as a means of minimising prejudice caused to an accused in any of the High Court decisions to which I have referred.  For example, reference was made in some authorities to the ability of a court to minimise prejudice to an accused by insisting on the provision of statements and particulars.  Reference was made to the loss of an opportunity to cross-examine witnesses.  Through use of a Basha inquiry, the ability of the court to minimise prejudice is not limited to the provision of statements and particulars.  The loss of an opportunity to cross-examine witnesses at the preliminary examination is not irremediable.  Regardless of whether the cause of the inability to cross-examine at the preliminary examination was an erroneous ruling by a magistrate or the later production of the witness, generally speaking a trial court will be able to overcome or minimise prejudice caused by that inability by permitting cross-examination of the witness prior to the empanelling of a jury.  This procedure enables an accused to explore those matters that the accused would have explored in cross-examination at a preliminary examination without the inhibiting presence of a jury.  Subject to matters such as the effect of a delay, and leaving aside the question of losing the opportunity of submitting that the accused should not be committed for trial, by this means an accused can usually be placed in the same position as the position in which the accused would have been had cross-examination been permitted at the preliminary examination.

20. In referring to the use of a Basha inquiry, it is appropriate to sound a note of caution.  The availability of a Basha inquiry is a significant feature to be considered by a court when faced with an application to stay proceedings on the basis that a trial will amount to an abuse of process or will be unfair to an accused.  However, in other than unusual situations, the availability of that procedure should not influence a magistrate in deciding whether special reasons exist to permit a witness to give oral evidence at a preliminary examination.  There is always a risk that the delay between the preliminary examination and the trial might cause irreparable prejudice or that cross-examination left to a Basha inquiry will result in the need for further investigations and cause a delay in proceeding with a trial before a jury.  If cross-examination is appropriately permitted at the preliminary examination, it might result in an early plea of guilty.

    Loss of Opportunity to Submit Insufficient Evidence

21. As mentioned, in respect of the charges relating to Trezise and Trevilyan, counsel for Haydon submitted that the accused has been prejudiced by the loss of the opportunity to submit to the Magistrate that the evidence was not sufficient to require that the accused be put on trial.  He also contended that the defects in the preliminary examination coupled with the absence of the opportunity to seek to cross-examine Vlassakis and other witnesses in the light of the evidence given by Vlassakis, resulted in a loss of opportunity to make the submission based on all of the relevant evidence.  This was allied with the submission that should the Magistrate have found a case to answer, Haydon had lost an opportunity of seeking to review that decision by way of proceedings for judicial review.

22. From a practical point of view, the opportunity to submit that the evidence would have been insufficient to put the accused on trial remains open in respect of all charges.  In Walton v Gardiner, in a joint judgment Mason CJ, Deane and Dawson JJ observed that regardless of the propriety of the conduct of the person responsible for the institution and maintenance of proceedings in a court, the proceedings “will constitute an abuse of process if they can be clearly seen to be foredoomed to fail” (p 393).  In my view, following a Basha inquiry, if I reach the view that  the evidence that the Crown intends to lead would not have been sufficient to require the accused to be put on trial or, to put it another way, that the case against the accused on one or more counts is “foredoomed to fail” because it will be incapable of establishing a case to answer, a stay of the trial on such count or counts would inevitably follow because to allow the trial to proceed on such count or counts would be to permit an abuse of the processes of this Court.

1. In my opinion, in the circumstances under consideration the loss of the opportunity to submit that there was insufficient evidence to require Haydon to put on trial in relation to Trezise and Trevilyan is not a matter of particular significance.  I regard the complaint that Haydon has lost an opportunity of seeking to review a decision to commit as without substance.

2. For these reasons, initially I refused all applications to stay the trial in respect of any count.  I left open the opportunity of again pursuing the applications after other issues had been determined and after the conclusion of a Basha inquiry should such an inquiry be undertaken.

3. After I had refused the application, but before the delivery of these reasons, I made orders with respect to separate trials which had the effect of separating Haydon from the trial of Bunting and Wagner.  I also ordered that the trial of Haydon with respect to the death of Trezise should be conducted in isolation from any other trial.  In addition, I ordered that the trial of Haydon on a further nine counts of murder, including that relating to Trevilyan, be separated from the remaining two counts because, in my view, the proposed evidence is incapable of implicating Haydon in the murders charged in those nine counts.  Subsequently, because of that lack of evidence, I ordered that the trial of those nine counts be stayed until further order of this Court.