R v Lee

[2015] ACTSC 193

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lee

Citation:

[2015] ACTSC 193

Hearing Date:

16 July 2015

DecisionDate:

16 July 2015

Before:

Burns J

Decision:

The application is refused.

Category:

Interlocutory application

Catchwords:

EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – pre-trial application for a Basha inquiry – application refused.

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 90AB

Cases Cited:

R v Bui [2011] ACTSC 102

Parties:

The Queen (Crown)

Huy Huu Lee (Accused)

Representation:

Counsel

Mr S Drumgold (Crown)

Mr S Gill (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Accused)

File Number:

SCC 272 of 2014

BURNS J:

1. This is an application that the accused be permitted to examine Francis Stanley Robertson, who is a witness in the proposed trial of the accused, prior to the date of that trial.  It is, in effect, an application that the Court allow what has been referred to as a ‘Basha Inquiry’ prior to the commencement of the trial of the accused. 

1. It is accepted on behalf of the accused that the principles governing such an application were referred to by Refshauge J in R v Bui [2011] ACTSC 102 (at [9]), where he said that:

It cannot now be expected that such inquiries will be readily or even ordinarily granted.

1. His Honour noted the new regime for committal proceedings, set out in division 3.5.2 of the Magistrates Court Act 1930 (ACT), and especially s 90AB, which substantially limits the cross examination of witnesses at committal. His Honour expressed the view that:

It would be inappropriate for too ready a granting of a Basha inquiry to permit the circumvention of these provisions.

His Honour went on to say that it seemed to him that:

...at least the tests set out in that section should now have to be met before such an inquiry were to be ordered.

1. One of the criteria set out in s 90AB of the Magistrates Court Act is that the interests of justice cannot adequately be satisfied by leaving the cross examination of the witness about a particular issue to the trial.  In the present case, I am told that the accused has filed an election to have the charges against him dealt with by a judge, sitting without a jury.

1. It is understandable that, where a trial is to be conducted before a jury, an accused may be loath to embark upon a cross examination of a Crown witness on such issues in the absence of having some knowledge in advance of the answers that are likely to be given by the witness.  That does not arise as a consideration where the trial is to be by judge alone. 

1. I am not satisfied that the interests of justice require this issue to be ventilated prior to the trial against the accused.  In those circumstances, the application will be refused.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 23 July 2015