R v Ibrahim

[2007] NSWSC 1140

CITATION:	Regina v Ibrahim [2007] NSWSC 1140
HEARING DATE(S):	5 October 2007
JUDGMENT DATE :	5 October 2007
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	5 October 2007
DECISION:	Application granted.
CATCHWORDS:	Basha inquiry - changes in position of principal Crown witness on critical evidence before trial - removal of prejudice to the accused.
CASES CITED:	Basha (1989) 39 A Crim R 337
PARTIES:	Regina Michael Ibrahim
FILE NUMBER(S):	SC 2006/2811
COUNSEL:	Mr Richter QC - Applicant Ms E Wilkins SC - Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

PRICE J

5 October 2007

2006/2811 Regina v Michael Ibrahim

JUDGMENT ex tempore

1 HIS HONOUR: During the committal proceedings George Michael Nassour gave evidence and was cross-examined by Ms Fullerton SC, as she then was, for the accused Michael Ibrahim. The effect of his evidence-in-chief, so far as the count of murder is concerned, was that he saw a knife, while each of the accused and the person referred to as Faouzi were kicking and punching his brother. However, he did not see who was holding the knife.

2 Mr Nassour's evidence on this issue substantially departed from his statement which had been served on the accused pursuant to orders made in the Local Court. At paragraph 27 of the statement, Mr Nassour nominated the accused, Michael Ibrahim, as having a knife in his hand. He relevantly states, "I saw Michael Ibrahim bend down as he stood around the head and shoulder area of my brother and use that knife to stab at my brother."

3 In cross-examination by Ms Fullerton, Mr Nassour adhered to his testimony in-chief that he had seen a knife but did not know who had the knife.

4 By letter dated 28 September 2007, the Solicitor for Public Prosecutions informed the legal representatives for the accused that, so far as relevant, "George Nassour also told us in conference that he was 90 percent sure that it was Michael Ibrahim who had the knife that he refers to in his statement dated 25/01/2006, towards the end of paragraph 27, but that he was too afraid to say that at the committal hearing."

5 No further statement of George Nassour has been served on the accused.

6 Ms Crown, however, has informed the court this morning that Mr Nassour intends to adhere to the evidence which he gave during the committal proceedings.

7 The accused, Michael Ibrahim, asks that Mr Nassour be made available today for a Basha Inquiry, the purpose of which is to ascertain what the witness will say about the knife on oath at trial and his reasons for the account that he gave at the committal proceedings.

8 The present case is a different case from Basha (1989) 39 A Crim R 337. In Basha the accused was committed for trial as being a party to a charge of supply heroin to an undercover police officer. The undercover officer was not called at the committal proceedings as he was still undercover. The prejudice which the accused Basha suffered was the loss of the opportunity to cross-examine the undercover police officer in advance of the trial in order to ascertain whether certain questions could safely be asked of him in the trial itself.

9 Mr Nassour gave evidence at the committal proceedings and was extensively cross-examined. Mr Ibrahim's counsel made no reference to the inconsistencies between Mr Nassour's statement and his evidence and did not cross-examine him on it. Counsel did not do so for reasons which are obvious. Mr Nassour's evidence-in-chief diminished the Crown case against Mr Ibrahim and to take him to account for what he said in his statement had the potential of increasing the strength of that case. If that is where the matter remained, there would be no justification for a Basha Inquiry.

10 However, certain information was relayed in the letter dated 28 September 2007 from which it appeared that Mr Nassour intended to revert, at least in part, to the account given in his statement. If he does so at trial, the prejudice that the accused has suffered is a loss of the opportunity to cross-examine him prior to the trial on the account which he did not give in the committal proceedings. If it be the case that Mr Nassour intends to adhere to the evidence which he gave during the committal proceedings, that prejudice will not, in fact, be suffered.

11 There is, however, an overall effect of the changes in position of Mr Nassour, which is this; the accused is denied knowledge of what the Crown witness will say on oath on a critical issue on the count of murder. That prejudice will be removed by permitting Mr Nassour to be called and to be cross-examined on the voir dire before the trial. It will then become apparent what he intends to say at trial.

12 Mr Nassour is to be called on the voir dire, which will be limited to the subject of these reasons.

**********