R v Greenfield - [2023] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation: R v Greenfield [2023] NSWSC 1386
Hearing dates: 14 November 2023
Date of orders: 15 November 2023
Decision date: 15 November 2023
Jurisdiction: Common Law
Before: Wilson J
Decision:
Brett Lucas and Shayne Miller are to attend Court on 21 November 2023 to give evidence at a preliminary hearing held in advance of the trial concerning matters identified in these reasons

Legislation Cited:
Coroners Act 2009 (NSW)
Crimes Act 2009 (NSW)
Criminal Procedure Act1986 (NSW)

Cases Cited:
HO v R [2023] NSWCCA 245
R v Basha (1989) 39 A Crim R 337
R v Kennedy (1997) 94 A Crim R 341
R v Sandford (1994) 33 NSWLR 172
R v Xie (No. 11) [2014] NSWSC 1977
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19

Category: Procedural rulings
Parties: Rex (Crown)
Stephen Greenfield (Accused)
Representation:
Counsel:
G Tabuteau (Crown)
I Nash (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
AA Criminal Lawyers (Accused)

File Number(s): 2020/326217
Publication restriction: Previously restricted to parties pending verdict or other order of the Court.

JUDGMENT

The accused, Stephen Greenfield, stands indicted for that he, on a day between 16 September 2015 and 21 September 2015, at Bathurst in this State, did murder Reginald Mullaly. He was arraigned upon that charge on 5 May 2023 and entered a plea of not guilty. His trial is fixed to commence on 20 May 2024, in Bathurst. It is estimated to require 8 to 10 weeks of hearing time.
The accused has made application to cross-examine seven persons prior to trial, at a pre-trial hearing of the kind ordinarily known as a “Basha Inquiry”. The witnesses (or “requested persons”) are:

Shayne Miller

Zac Forbes (or Nancarrow)

Nicole Fawns

Brett Lucas

Simon Hearne

Glen Merz, and

Link Frame.

Five of these persons - Miller, Forbes/Nancarrow, Fawns, Frame and Lucas - have been nominated by the Crown as witnesses to be called in its case at trial. Glen Merz has given a statement to investigating police but has not been nominated as a Crown witness. He will be called by the Crown at the trial or, at least, made available to the accused should the accused require him as a witness. Mr Hearne has not made a statement and is not understood to be a Crown witness.
The accused contends that, in the absence of pre-trial cross-examination to explore the evidence that each witness can give on particular topics, he will be impermissibly prejudiced at trial. To understand the argument, it is useful to give some brief details of the circumstances of Mr Mullaly’s death before turning to the accounts of or by the persons the subject of the application.
Mr Mullaly lived in the Bathurst area, although he did not have a place of residence, instead living on the streets. Aspects of his daily routine were fairly settled, and included regular attendances at a bakery on Howick Street in Bathurst, and travel by taxi. Mr Mullaly…

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 Greenfield

Details

AGLC: R v Greenfield [2023] NSWSC 1386
Case: [2023] NSWSC 1386
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the case of R v Greenfield, the accused, Stephen Greenfield, stands indicted for the murder of Reginald Mullaly, which allegedly occurred between 16 September 2015 and 21 September 2015 in Bathurst. The accused has pleaded not guilty, and his trial is scheduled for 20 May 2024. Prior to the trial, the accused applied to cross-examine seven witnesses at a Basha Inquiry, asserting that their testimony could significantly impact his defence. The witnesses are Shayne Miller, Zac Forbes (or Nancarrow), Nicole Fawns, Brett Lucas, Simon Hearne, Glen Merz, and Link Frame. The Crown opposes the application, arguing that the accused already has substantial information from police investigations and the coronial inquiry.

The legal issues in this case revolve around the necessity of a Basha inquiry and whether the accused's right to a fair trial would be prejudiced without the opportunity to cross-examine these witnesses. The court had to determine whether there was a serious risk of an unfair trial if the accused was not permitted to cross-examine these witnesses before the trial.

The court concluded that for most of the requested persons, the accused's right to a fair trial would not be prejudiced without a Basha inquiry. The evidence against these witnesses, such as Nicole Fawns, Glen Merz, and Link Frame, was primarily speculative and based on hearsay. However, the court found that Brett Lucas and Shayne Miller's testimonies could potentially cause prejudice to the accused. Specifically, Brett Lucas's account to police and his conversation with a detective suggested that an idea was "planted" in the accused's mind that he was responsible for the murder, which could be crucial for addressing evidence of admissions and inculpatory conduct by the accused. Similarly, Shayne Miller's alleged admissions of involvement in the murder, as reported by others, warranted a Basha inquiry to explore the circumstances of these conversations.

Accordingly, the court ordered that Brett Lucas and Shayne Miller attend Court on 21 November 2023 to give evidence at a preliminary hearing concerning the matters outlined in the reasons. The other witnesses will not be subject to a Basha inquiry.

Orders