R v Novakovich - [2014] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v NOVAKOVICH
[2014] SASC 179
Reasons for Decision of The Honourable Justice Sulan
26 November 2014
CRIMINAL LAW - PROCEDURE - PROSECUTION - COMMITTAL FOR TRIAL BY JUSTICE OR CORONER
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
The applicant applied to cross-examine two prosecution witnesses prior to the commencement of trial. The trial would not be unfair if the application is refused.
Summary Procedure Act 1921 (SA) s 106(2); Magistrates Court Rules 1992 (SA) r 20.02, referred to.
R v Basha (1989) 39 A Crim R 337; R v Bunting & Others (No. 2) [2003] SASC 250; R v Kennedy (1997) 94 A Crim R 34; Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404; R v Sandford (1994) 33 NSWLR 172, applied.
Novakovich v Magistrates Court of South Australia [2014] SASC 106, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Basha inquiry"

R v NOVAKOVICH
[2014] SASC 179
Criminal: Application to cross-examine witnesses prior to trial

SULAN J: Nikola Novakovich who is charged with murder has applied to cross-examine two prosecution witnesses prior to the commencement of trial. The trial is listed to commence on 2 February 2015.
Background
The applicant is charged with the murder of Karen Williams at Coober Pedy on 4 August 1990. At the committal hearing the applicant applied to cross-examine four witnesses, including Aleksander Radosavljevic and Gordana Susa who are the subject of this application. That application was refused.[1] The applicant sought judicial review of this decision before this Court which dismissed the application on 8 August 2014. Gray J in his reasons stated that any prejudice arising from the decision of the Magistrate refusing the preliminary examination could be addressed by examining the witnesses on a voir dire after the applicant has been committed to trial.[2] The applicant was arraigned before me on 11 August 2014. On 17 August 2014 the applicant filed an application to cross-examine Mr Radosavljevic and Ms Susa prior to the commencement of the trial.
[1] Summary Procedure Act 1921 (SA) s 106(2), Magistrates Court Rules 1992 (SA) r 20.02.
[2] Novakovich v Magistrates Court of South Australia [2014] SASC 106 at 25.
The application
Counsel for the applicant contends that to ensure a fair trial he should be given the opportunity to cross-examine Mr Radosavljevic and Ms Susa prior to the trial.[3] Mr Radosavljevic first gave a statement to police implicating the applicant in July 2013 some 23 years after the alleged murder. A reward of $200,000 was offered to any person who provides information about the murder leading to an arrest and conviction. He has so far provided seven declarations to the police. In his first statement Mr Radosavljevic told the police that he had assisted the applicant in disposing of the body of the deceased after she witnessed them steal a generator. He subsequently gave a statement dated 15 August 2013 that he lied about stealing a generator but participated in an armed robbery with the applicant and another man. He maintained that he assisted the applicant in disposing of the deceased’s body. In the second statement Mr Radosavljevic claims that he gave the police false information in the first statement because he was concerned about the repercussions of admitting that he had participated in an armed robbery. Counsel for the applicant submits that Mr Radosavljevic is an accomplice to the murder who has given conflicting statements to the police in relation to his involvement in the murder.
[3] R v Basha (1989) 39 A Crim R 337.
An inquiry prior to trial by which the accused is permitted to cross-examine a witness on the voir dire is referred to as a Basha inquiry.
Counsel submits that cross-examination prior to trial is necessary to allow for further investigations to be made and to clarify other inconsistencies in the evidence. The topics proposed to be addressed with respect to Mr Radosavljevic are; when and why he gave incorrect information to the police and subsequently corrected this, his movements immediately after disposing the body and during the 23 years prior to contacting police, whether he contacted the other alleged participant in the armed robbery and whether he contacted anyone who was in Coober Pedy at the time of the alleged murder. Furthermore, Counsel wish to cross-examine in respect of Mr Radosavljevic’s interactions with police including discussing the reward, and the conversation with Ms Susa and others regarding the disposal of the body.
Ms Susa was previously in a relationship with Mr Radosavljevic which commenced after the murder. She gave a declaration in 1999 in which she states that Mr Radosavljevic admitted to participating in the murder. This is inconsistent with the account of Mr Radosavljevic that he only assisted in the disposal of the body. Counsel is seeking to cross-examine Ms Susa about the conversation with Mr Radosavljevic regarding his participation in the murder and any other conversations with respect to the admission.
Counsel for the prosecution opposed the application. It is submitted that a serious risk of an unfair trial does not arise if the application is refused. It is clear that the evidence of Mr Radosavljevic is crucial to the prosecution case. The prosecution case is that the applicant killed Ms Williams and disposed of her body after she witnessed him carry out an armed robbery a few days earlier. The body and any remains have not been located. Counsel submits that the topics on which the applicant seeks to cross-examine the witnesses prior to trial have been addressed through declarations. Any further inconsistencies that may arise during cross-examination in the trial are matters to be dealt with in the course of the trial which is by judge alone.
Basha Inquiry
The procedure governing a Basha inquiry was outlined by Martin J in R v Bunting & Others (No 2):[4]
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.
[4] [2003] SASC 250 at 44.
However, the cross-examination of witnesses after committal is only permissible where otherwise there would be a serious risk of an unfair trial.[5] In R v Kennedy Hunt CJ observed:[6]
Solid grounds must be disclosed for supposing that cross-examination 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.
[5] R v Kennedy (1997) 94 A Crim R 341 at 352 (Hunt CJ).
[6] Ibid.
The interests of justice requires demonstrating that the procedure is necessary for ensuring a fair trial before permission to conduct a Basha inquiry is granted.[7] In Goldsmith v Newman and the State of South Australia,[8] King CJ when considering whether an oral examination of witnesses during committal proceedings should be ordered said:[9]
While proof of facts by means of written statements without oral examination is the norm, the decision as to whether special reasons exist for oral examination should not be approached in an unduly restrictive way. Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations.
[7] Ibid, 351-352.
[8] (1992) 59 SASR 404.
[9] (1992) 59 SASR 404 at 410.
The principle to which King CJ referred is applicable to an application for a Basha inquiry. The question is whether in order to establish conditions for a fair trial a Basha inquiry is required. A Basha inquiry is not an opportunity to test various lines of questioning in order to find the best way to discredit a witness at trial.[10] Indeed, as King CJ stated in Goldsmith: [11]
Such disadvantage as the defence may suffer in consequence of being deprived of the opportunity of cross-examining a witness twice and thereby testing the witness's ability to tell a consistent story, is not sufficient, as that would not be a sufficient departure from the norm to amount to special reasons. 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 plainly not sufficient.
[10] See R v Sandford (1994) 33 NSWLR 172 at 180-181 (Hunt CJ).
[11] Above n 8, 410.
If the applicant requires further particulars concerning the evidence sought to be adduced by the prosecution or to clarify factual matters then those particulars should be sought. The prosecution is under a duty to provide all relevant material to the defence.
I consider that the majority of topics identified by counsel for the applicant have been provided in the declarations. In so far as further material is relevant details of it should be requested. If the applicant requires further particulars about the evidence to be adduced then it is open to him to request further declarations from the prosecution prior to trial.
I note that this trial is by judge alone. It follows that if inadmissible evidence is led the trial judge can rule upon it. The fact that some of the material upon which the prosecution may seek to rely may be subject to objection is much more easily dealt with in a trial by judge alone. The trial judge can accommodate unexpected issues that may require further investigation by defence counsel. It is not unusual for trial judges to be required to rule upon evidence which may ultimately be excluded. The issue of a mistrial due to inadmissible evidence being led at trial is not present in a trial without a jury. The fact that defence counsel may wish to cross-examine upon topics which are relevant to the credibility and reliability of witnesses is not a sufficient reason to order a Basha inquiry. If matters arise during the evidence which require investigation by the defence then the matter can be adjourned pending those enquiries being made. Witnesses can be interposed and if required recalled.
Conclusion
I am satisfied that the trial will not be unfair if the nominated witnesses are not cross-examined on the voir dire. The application to cross-examine Mr Radosavljevic and Ms Susa prior to the commencement of trial is refused.