R v W

[2009] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:	R v W [2009] QDC 40
PARTIES:	R v W
FILE NO/S:	Indictment 5/2008
DIVISION:	Criminal
PROCEEDING:	Application for Basha Inquiry
ORIGINATING
COURT:	District Court
DELIVERED ON:	13 February 2009
DELIVERED AT:	Mt Isa
HEARING DATE:	13 February 2009
JUDGE:	Dearden DCJ
ORDER:	Application for Basha Inquiry granted
CATCHWORDS:	Criminal Law (Qld) - Sexual assault - Application for Basha Inquiry - Where matter proceeded by way of full hand up committal - Where there was a failure to proceed with contested committal involving cross-examination - Appropriate function of Magistrates Court committals
LEGISLATION:	Justices Act (Qld) 1886
CASES:	R v Basha (1989) 39 A Crim R 337
COUNSEL:	Mr W Pennell for the applicant/defendant
Mr A Anderson for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Commission, solicitors for the applicant/defendant
Director of Public Prosecutions for the respondent

[1] HIS HONOUR: This is an application on behalf of the

applicant W seeking what's known as a Basha Inquiry in respect of the following witnesses: Plain-Clothes Senior Constable Melissa De Sloovere, Detective Sergeant James O'Keefe, Constable Donald Roseby, L (complainant), MT, NO and CB.

[2] The background to this application is set out in rather stark and startling detail in the transcript of the proceedings in the Childrens Court at Doomadgee dated 16 January 2008 before a then acting learned Magistrate whom, I understand from information from the Bar table, may have subsequently been appointed to a permanent position.

[3] There's been a further clarification of the circumstances contained in evidence contained in the affidavit of David Lionel Ritchie, the solicitor who appeared at what eventually became a full hand up committal under section 110A of the Justices Act.

[4] The reasons that the matter proceeded to a full hand up committal should be canvassed in some little detail because they appear to me, in my very firm view, to reflect the learned acting Magistrate's significant misunderstanding of his role as a judicial officer in committal proceedings, and a consequent failure to appreciate both the law and the role of the District Court in criminal proceedings.

[5] In very brief outline, what occurred was that the defendant was before the Childrens Court at Doomadgee in respect of two separate sexual assault charges. Subsequently, that defendant has only been indicted on a single charge relating to the complainant, L.

[6] The learned acting Magistrate made a number of comments on the record which, to put it at its politest, I find disturbing. The first was after Mr Ritchie had indicated that he - either Mr Ritchie or, perhaps, the Prosecutor; it's hard to know - was expecting "a committal with cross on both matters".

[7] The learned acting Magistrate said, "Look, I'm anxious to get out of this jurisdiction." He then - that is, the learned acting Magistrate - went on, according to the transcript - although it's unclear whether it was the Magistrate who said this or someone else - but someone said, "Now, I’m submitting…