R v KS; R v KN; R v KI

[2020] ACTSC 275

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KS; R v KN; R v KI
Citation:	[2020] ACTSC 275
Hearing Date:	8 October 2020
Decision Date:	8 October 2020
Before:	Elkaim J
Decision:	See [16]
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Whether a Basha Inquiry should proceed – admission by accused – conspiring to escape from lawful custody – whether there is a real
prejudice suffered by the accused
Legislation Cited:	Crimes Act 1900 (ACT) s 160 Criminal Code 2002 (ACT) s 48
Parties:	KS (Applicant) KN (Applicant)
KI (Applicant) The Queen (Respondent)
Representation:	Counsel
P Edmonds (Applicant) J Moffett (Applicant)
K Lee (Respondent)
Solicitors
Paul Edmonds & Associates (Applicant)
Sharman Robertson (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 108 of 2020; SCC 109 of 2020; SCC 110 of 2020; SCC 131 of 2020; SCC 132 of 2020; SCC 158 of 2020; SCC 99 of 2020; SCC 100 of 2020; SCC 157 of 2020
ELKAIM J:

1. The trials of KS, KN and KI (the accused) are due to start on 23 November 2020. In essence, they are charged, inter alia, with conspiring to escape from lawful custody contrary to s 48 of the Criminal Code 2002 (ACT) and s 160 of the Crimes Act 1900 (ACT).

2.       Proof of a conspiracy involves five elements:

(i)       The accused enters an agreement with one or more other people to commit an offence.

(ii)      The accused intended to enter into the agreement.

(iii)     The accused and at least one other party to the agreement intends that an offence will be committed in accordance with the agreement.

(iv)     The accused, or another person implicated in the agreement, commits an overt act pursuant to the agreement.

(v)      The accused or the other person intentionally performed the overt act.

3.       By an application filed on 7 August 2020 the accused, KS, has sought what is described as a Basha Inquiry, in which he will be permitted to cross-examine an intended Crown witness, namely Ms Jane Bowen. The application is supported by KI who also wishes to cross-examine Ms Bowen. KN has not appeared today but I assume that he too might wish to be granted the same leave.

4.       Ms Bowen was a youth officer working at Bimberi Youth Justice Centre when the conspiracy to escape is said to have occurred. Ms Bowen participated in a recorded interview with police on 2 October 2019. In this interview she gives details of conversations she had with inmates of the Centre.

5.       KS says that the relevant portions of the interview are so rife with ambiguity that it is impossible to clearly distinguish the persons that Ms Bowen asserts said certain things. These things are important because they would form the basis of the agreement required for the conspiracy.

6.       The test for the granting of the leave required is correctly set out by the Crown in its written submissions. In particular there is this passage from [6]:

6         A Basha inquiry is traditionally held to permit an accused person to cross-examine a witness in the absence of a jury where that witness was not called at a committal hearing. The purpose is to overcome any prejudice from the fact that the witness did not give evidence at the committal hearing. Before such a procedure is adopted, the accused person must demonstrate the particular issue(s) which he or she intends to pursue and the judge must be satisfied that there is, at least, a serious risk of an unfair trial if the accused person is not given the opportunity to do what otherwise would have been done at the committal proceedings. The onus lies upon the accused to demonstrate that the disadvantage or prejudice which he or she would otherwise suffer during the trial is unacceptable. The procedure is not to be used to try out risky questions which may otherwise prove to be embarrassing or unproductive in the presence of a jury.

(Citations omitted.)

7.       The Crown further, and again correctly, refined the test for the purposes of this case in stating that any ambiguity must be such that it leads to a real prejudice suffered by the defence, which in turn leads to an unfair trial.

8.       The Crown submitted that a close examination of the relevant portions of the record of interview, essentially from Questions 315 to 325, does not reveal such an ambiguity.

9.       I disagree. It is correct that it is possible to analyse the relevant answers to distinguish what was said by one accused as opposed to another. Nevertheless I do not think such an analysis reveals the clarity that would be required in proof of an agreement or more importantly, in defence of proof of such an agreement.

10.     On a number of occasions Ms Bowen refers to more than one person having made a

statement (for example, Question 321) or statements like “We all got together” (Question

317) which significantly muddy the clarity asserted by the Crown.

11.     I am satisfied that ambiguity of the type said by the Crown to be necessary does exist.

12.     In supporting the application counsel for KI submitted that another factor that should influence me was the criminal case conference to be heard on 29 October 2020. I accept that the evidence given at an inquiry might assist in this conference but I do not see the holding of a conference as part of any test justifying the inquiry.

13.     Contemplating a decision against it, the Crown submitted that any questioning of Ms Bowen should be restricted to certain topics. I asked the Crown to prepare a note of those topics.

14.     As a result the Crown set out four topics which it said were relevant. Unfortunately the defence did not specifically agree with the wording, essentially saying that the topics suggested in the submissions in support of the application were preferable.

15.     I think there is a danger in setting specific topics and a more general approach would be appropriate.

16.     Accordingly, I will allow the Basha Inquiry to be held but it will be restricted to the issue of what was said and by whom in relation to evidence of any agreement said to constitute the agreement necessary for proof of Count 6 of the indictment.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 9 October 2020