R v Peter James Day [2]

[2009] NSWDC 361

CITATION:	R v Peter James DAY [2] [2009] NSWDC 361
HEARING DATE(S):	20 April 2009
EX TEMPORE JUDGMENT DATE:	20 April 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Application for a Basha inquiry is refused.
CATCHWORDS:	CRIMINAL LAW - Judgment - Application to conduct Basha inquiry
PARTIES:	The Crown Peter James Day
FILE NUMBER(S):	DC 07/21/3387
COUNSEL:	E. Balodis - The Crown P. King - Accused
SOLICITORS:	Director of Public Prosecutions Matouk Joyner Lawyers - Accused

JUDGMENT

1 HIS HONOUR: I have before me an application that there be a Basha inquiry in relation to the evidence of a proposed Crown witness, Ms Virginie Bond. The trial involves allegations by the Crown that the accused became obsessed with a woman by the name of RM, to the extent that on 22 August 2006, he decided that he would have Ms M kidnapped.

2 The Crown case is that to that end, the accused obtained the services of two men, who I think have not been identified, as well as an employee of his, Ms Bond. Ms Bond was told by the accused that she would be there in order to calm Ms M down after she had been kidnapped.

3 Ms Bond has made a statement to the police attached to an interview. In the interview, she gives a description of the events of 22 August 2006, that being the night on which the Crown says the accused went to Ms M’s home with Ms Bond and the two other men for the purpose of kidnapping Ms M.

4 Mr King says that it would be permissible and useful for Ms Bond to be cross-examined by him on voir dire. In attempting to identify the issues that Ms Bond would be cross-examined about, I have looked at the interview, the further statement made by Ms Bond and also heard what Mr King has said about the nature of the challenge to Ms Bond’s evidence.

5 It is not clear that Mr King will be suggesting that Ms Bond is lying rather than simply mistaken. Mr King tells me that tactical decisions will have to be made once Ms Bond has given her evidence before the jury. However, it would, at first blush, seem to be difficult for the accused to proffer an innocent explanation for the things that Ms Bond has said.

6 It would be, on the material before me at present, highly unlikely that ultimately Mr King would be submitting to the jury that Ms Bond was simply mistaken given the nature of the events that she describes including men with balaclavas being armed with machetes.

7 A Basha inquiry is an unusual procedure. It is certainly not unknown and courts regularly allow what is effectively a dry run at cross-examining witnesses on occasions. Basha inquiries are perhaps even more important since the gradual change in committal proceedings from being occasions where all the Crown witnesses were available for cross-examination to the present situation where hurdles must be overcome before witnesses are cross-examined at committal.

8 It is clearly the case that there may be some witnesses who magistrates correctly decide should not be cross-examined but who should be cross-examined on a Basha inquiry in order to ensure that the trial of an accused is fair.

9 In this case, I note that there was no application, at the committal stage, for Ms Bond to be cross-examined. That is not terribly relevant but I do note that it did not apparently occur to those earlier representing Mr Day that there would be any benefit in such cross-examination.

10 The onus is on the accused to demonstrate that I should grant the application for the Basha inquiry. Basha inquiries should not be lightly granted. It is the experience of the criminal courts that witnesses are on occasion so affected by the experience of being cross-examined at a criminal trial that they refuse to allow to have the experience repeated. It would, in my opinion, be naïve to assume that Ms Bond will necessarily voluntarily assist the prosecution by returning for cross-examination before a jury after she has been first cross-examined on a Basha inquiry.

11 I make those comments irrespective of the nature of the particular application before me but it is the general experience of the criminal courts that witnesses on occasion will refuse to come back to court after being cross-examined. Ms Bond is twenty years of age and it is likely that cross-examination of her would be challenging.

12 The onus is on the accused to demonstrate that his trial will be unfair in the event that Ms Bond is not cross-examined. Mr King quite appropriately in his written submissions set out those particular areas where he proposed to cross-examine Ms Bond. It should not be thought that Mr King would need to cross-examine at the trial without knowing much of the information that he would seek in cross-examining Ms Bond. He could obtain much of that information simply by asking the Crown or asking the police officers involved or even asking Ms Bond herself. It is certainly not the case that if this application is refused, that Mr King is unable to inform himself of many of the matters about which he would cross-examine Ms Bond on a Basha inquiry.

13 In particular, Mr King says that he knows nothing about how the interview of 22 November 2006 came into existence. He could always ask. It does not require a Basha inquiry for him to find out, from police at least, what it was that led up to that interview. The police could also be asked what they said to Ms Bond before the interview took place. It remains a possibility, of course, that the police might say something which Ms Bond disagrees with when she is cross-examined in court but the purpose of a Basha inquiry is not to provide potential contradictory evidence.

14 Mr King says that the Basha inquiry might even reveal that Ms Bond’s evidence was contaminated. If the cross-examination at trial did reveal that then it would always be open for the evidence to be excluded, even though it had been given, probably then requiring the discharge of the jury.

15 In almost every case, it could be said that it would be useful to have a dry run at cross-examining a witness. It would probably be useful, for Mr King at least, to have a dry run at cross-examining Ms Bond but that is not sufficient to demonstrate that a Basha inquiry should be held. As I have said, the better test is whether the trial of the accused would be fair in the absence of a Basha inquiry.

16 I am satisfied that there is has been nothing demonstrated to me that would suggest that the trial would be unfair in the absence of a Basha inquiry. Of course, if events reveal later on that I was wrong in that conclusion then, as I mentioned before, it is always possible that the jury would be discharged and a new trial held. For those reasons, the application for a Basha inquiry is refused.

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