R v Stacey - [2014] QDC 299

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Stacey [2014] QDC 299

PARTIES:

THE QUEEN

v

JOHN WILLIAM STACEY

FILE NO/S:

DIS-5667/147(3)

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Emerald

DELIVERED ON:

Ex tempore reasons delivered on 25 November 2014

DELIVERED AT:

Emerald

HEARING DATE:

25 November 2014

JUDGE:

Smith DCJA

ORDER:

Application granted

CATCHWORDS:

CRIMIMAL LAW- Application for Basha Inquiry

Criminal Code 1899 (Q) s590AA

Justices Act 1886 (Q) s 110B

B v R [2010] QDC 417

JW v Director of Public Prosecutions [1999] NSWSC 1244

Poliakov v Magistrate Andrew George (2009) 212 A Crim R 461

R v Basha (1989) 39 A Crim R 337

Sim v Corbett [2006] NSWSC 665

COUNSEL:

Ms C. Whelan for the Crown

Mr D. Lynch for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Howden Saggers for the defendant

This is an application by the Defence pursuant to section 590AA of the Criminal Code for a “Basha”[1] hearing as to the witness Kevin Ace Wilson. The circumstances of the matter are that Mr Stacey is charged with one count of burglary by break at night whilst armed in company damaging property, two counts of deprivation of liberty, one count of attempted armed robbery in company and one count of threatening violence at night. All of these offences are alleged to have occurred on 6 January 2014 in Emerald.
[1]R v Basha (1989) 39 A Crim R 337

Mr Bradley Wallace has provided a statement dated 7 January 2014. He says in his statement, in essence, there was a home invasion of his house on the relevant date. He identifies the voice of Cozamanis but ultimately does not identify the accused as being present. It was agreed by the police on 27 August 2014 that he be cross-examined at committal and a cross-examination occurred.

Mr Wilson was interviewed by way of a formal record of interview on the 8 January 2014 at 21:40 hours. It is unclear from the material how long he was in the company of police prior to the provision of this record of interview.

After the interview, he provided a police statement of some eight pages, which was signed on 9 January 2014. I am not sure whether he was present throughout the night providing this interview or statement or not. In any event, he says in the start of his statement:

“I have provided this statement of my own free will and have not been promised anything or threatened in any way to make this statement by any person.”

There must have been discussions between him and the police as to this statement, and further there were paragraphs about him knowing that he would be liable to prosecution if he stated anything untrue in the statement. There must have been discussions about that matter prior to the provision of this statement, the details of which are not clear from the material.

He, in essence, describes his involvement in this alleged crime by driving the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stacey

Details

AGLC: R v Stacey [2014] QDC 299
Case: [2014] QDC 299
Decision Date: 25 November 2014

CaseChat Overview and Summary

In the matter of R v Stacey, the defendant was charged with various criminal offences. The dispute centred on the admissibility of evidence obtained during a Basha inquiry. The case was heard in the Supreme Court of Queensland. The defendant applied for a Basha inquiry to be held to determine whether certain evidence obtained from an undercover police officer should be excluded under section 590AA of the Criminal Code 1899 (Q). The applicant argued that the evidence was obtained through improper conduct by the police officer, and therefore should not be admitted in court.

The legal issues before the court were whether the evidence obtained by the undercover police officer was admissible and whether the defendant's right to a fair trial had been breached. The court had to consider the relevant provisions of the Criminal Code and the applicable case law. The court also had to determine whether the Basha inquiry was necessary and, if so, whether the inquiry should be held in camera. The court considered the principles established in previous cases, such as R v Basha, B v R, JW v Director of Public Prosecutions, Poliakov v Magistrate Andrew George, and Sim v Corbett.

After considering the evidence and arguments presented by both parties, the court concluded that a Basha inquiry was necessary to determine whether the evidence obtained by the undercover police officer was admissible. The court found that the inquiry should be held in camera, in accordance with section 110B of the Justices Act 1886 (Q). The court granted the application for a Basha inquiry, and the matter was referred to a magistrate for the inquiry to be held. The court also made orders for the preservation of the evidence and the disclosure of relevant documents to the defence. The application for the Basha inquiry was granted, and the case will proceed accordingly.

Orders

Orders of the court

Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Stacey [2014] QDC 299
PARTIES:	THE QUEEN v JOHN WILLIAM STACEY
FILE NO/S:	DIS-5667/147(3)
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Emerald
DELIVERED ON:	Ex tempore reasons delivered on 25 November 2014
DELIVERED AT:	Emerald
HEARING DATE:	25 November 2014
JUDGE:	Smith DCJA
ORDER:	Application granted
CATCHWORDS:	CRIMIMAL LAW- Application for Basha Inquiry Criminal Code 1899 (Q) s590AA Justices Act 1886 (Q) s 110B B v R [2010] QDC 417 JW v Director of Public Prosecutions [1999] NSWSC 1244 Poliakov v Magistrate Andrew George (2009) 212 A Crim R 461 R v Basha (1989) 39 A Crim R 337 Sim v Corbett [2006] NSWSC 665
COUNSEL:	Ms C. Whelan for the Crown Mr D. Lynch for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Howden Saggers for the defendant