Nicholson v The Queen

1. [1]

   HOEBEN CJ at CL: I agree with the reasons of Garling J and the additional reasons of Beech-Jones J.

2. [2]

   GARLING J: The applicant, Bruce Frederick Nicholson, seeks leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, to appeal from a decision of the District Court (Huggett DCJ) on 6 November 2016, refusing to permit an interlocutory procedure loosely described by counsel for the applicant as a Basha inquiry, whereby the applicant could interrogate JW, the complainant (or “protected confider”) as to the identity of the person (or persons) with whom the protected confider had engaged in counselling in relation to allegations of sexual assault and indecent assault upon her committed, allegedly, by the applicant.

3. [3]

   The application for leave to appeal is opposed by the Crown which contends that there was no “… interlocutory judgment or order …” of the District Court for the purposes of s 5F(3) in respect of which leave to appeal can be granted. The protected confider also makes a similar submission.

4. [4]

   At the conclusion of the hearing of the application, the Court announced the orders set out at the end of these reasons and indicated that reasons would be delivered in due course. These are my reasons for proposing the Court’s orders.

5. [5]

   It was appropriate to first determine the question of whether an interlocutory judgment or order exists so as to ground jurisdiction in this Court to grant leave to appeal, before considering whether any error of law has been demonstrated.

6. [6]

   In order to examine this question, some consideration needs to be given to precisely what occurred in the District Court in December 2016.

District Court Proceedings

1. [7]

   It is apparent that the trial was listed to commence on Tuesday 6 December 2016 before Huggett DCJ and a jury. When the matter was called on, her Honour was informed by the Crown that the matter was not ready for a jury to be empanelled at that time because there was a pre-trial application (or applications) to be made by counsel for the accused, who is the applicant in these proceedings.

2. [8]

   Accordingly, her Honour invited the Crown to present the Indictment so that the accused could be arraigned. This occurred. The accused was arraigned on three charges contrary to s 61E(1) of the Crimes Act 1900 of indecent assault of a person under the age of 16, and two counts, contrary to s 66A of the Crimes Act, of sexual intercourse with a person under the age of 10. To each of these counts, the accused pleaded not guilty.

3. [9]

   The victim of each of these alleged offences was JW, to whom it is convenient to refer as “the protected confider”.

4. [10]

   Counsel for the accused was asked to indicate what matters the Court ought deal with before the jury was empanelled. He said:

5. [11]

   The second issue identified which relates to the “pretext” telephone intercept was not determined and forms no part of the issue before this Court.

6. [12]

   To enable the Court to understand the debate which was to take place, the Crown was invited to briefly tell the Court the relationship between the accused, Mr Nicholson, who is the applicant in this Court, and the protected confider. The Crown gave a short outline.

7. [13]

   Counsel for the accused then handed up to the Court a Notice of Motion. It does not seem to have been formally filed. It sought an order in the following form:

8. [14]

   No form of subpoena or the wording of a schedule which is a part of the subpoena was attached to the Notice of Motion or otherwise put before the District Court. Hence, the only description as to the contents of the documents sought was that contained in the prayer for relief in the Notice of Motion.

9. [15]

   The protected confider was represented by counsel in the District Court. Counsel was asked to ascertain whether, before the Court embarked upon hearing the accused’s Motion, she would be willing to disclose the identity of those professional counsellors with whom she had consulted prior to making a complaint to NSW Police about the effects upon her of the accused’s conduct. After an adjournment, counsel indicated that the protected confider was not willing to voluntarily disclose the names of those people.

10. [16]

    Counsel for the accused was then asked by the presiding Judge to specify with some particularity what it was that he was seeking by the issue of the subpoena. He gave this description:

11. [17]

    There was then further discussion between the Bench and the Bar. Counsel for the applicant was then asked what power the Court had to compel the protected confider to provide the names of the treating professionals. Counsel indicated that the power of the Court was to be found, impliedly, within the provisions in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 by reference to the necessity to ensure that the ability to issue a subpoena was not rendered nugatory. That Division deals with “Sexual Assault Communications Privilege”.

12. [18]

    Counsel then sought to put his submission in this way, perhaps somewhat informally, but nevertheless effectively, to communicate the circumstance in which he thought the accused found himself, namely:

13. [19]

    The reference to a Basha inquiry was understood by all present in the District Court to be a reference to the procedure discussed and adopted in R v Basha (1989) 39 A Crim R 337.

14. [20]

    Huggett DCJ for the benefit of her counsel, distilled what was being sought from the protected confider, namely:

15. [21]

    Counsel for the accused then handed up a set of written submissions, together with some other documents. The written submissions dealt principally with the order sought in the Notice of Motion.

16. [22]

    An adjournment was taken. Upon resumption counsel for the protected confider again informed the Court that the complainant was not willing to provide the names of the counsellors.

17. [23]

    Her Honour responded:

18. [24]

    A further short adjournment was taken at the request of counsel for the accused who, upon resumption, informed her Honour that he wished to seek leave to appeal her Honour’s decision in relation to the Basha inquiry pursuant to s 5F of the Criminal Appeal Act.

19. [25]

    There was further discussion. Her Honour said:

20. [26]

    Further discussion confirmed her Honour’s understanding that counsel for the accused wished to ask the protected confider on oath to provide the names of the counsellors.

21. [27]

    Her Honour then said:

22. [28]

    It can be seen from this exchange that her Honour was informing counsel of her likely ruling on the evidence which the protected confider would be obliged to give if called to the witness box.

23. [29]

    Her Honour then confirmed with counsel for the applicant that the intended appeal was with respect to her Honour’s not allowing a Basha inquiry intended for that particular purpose. Counsel accepted that this was so.

“Interlocutory judgment or order” – Submissions

1. [30]

   The Crown submitted that her Honour’s refusal to accede to the applicant’s request for a Basha inquiry (as it is convenient to call what was proposed by counsel for the accused), is not an “interlocutory judgment or order” within the meaning of that phrase in s 5F(3) of the Criminal Appeal Act.

2. [31]

   The Crown submitted that the very nature of a Basha inquiry is such that it is both a procedural matter, and a matter incidental to the conduct of a fair trial, and that it is not a matter of substance, or which after a determination, a matter which cannot be revisited. The Crown submitted that it is not uncommonly the case that an application for a Basha inquiry might be denied at one stage of proceedings but granted later in the proceedings when particular issues emerged or became defined with greater clarify. The Crown submitted that in the circumstances here, there was no real difference between what happened and a ruling on evidence which is not a ruling which is capable of interlocutory challenge.

3. [32]

   It submitted that her Honour’s ruling was not “… [a] decision of the Court which determines the proceedings [or an identifiable or separate part of them]” : see R v Steffan (1993) 30 NSWLR 633 at 636.

4. [33]

   The applicant submitted that the Court would regard her Honour’s refusal to permit a Basha inquiry as an order within the meaning of s 5F(3) of the Criminal Appeal Act. The applicant pointed to the decision of this Court in Kocer v R [2006] NSWCCA 328 at [11]ff as authority for the proposition that where an adjudication has been made by the Court between parties to the proceedings resolving a disputed issue, the Court has made an order.

5. [34]

   The applicant seems to submit that, in keeping with the decision in Kocer, an order made in the course of an action (or a trial) can be interlocutory where it concludes the fate of a particular application, but does not conclude in any final way the rights of the parties. Here the applicant has submitted that the ruling given by her Honour, namely that she would not permit a Basha inquiry to be held, was a determination by the Court of the particular application which had been brought.

Discernment

1. [35]

   It is convenient to commence by noting a reference to what was said by Rothman J in Kocer at [22], because it provides an important context against which to consider the applicant’s submissions.

2. [36]

   His Honour said (with the agreement of McClellan CJ at CL and Buddin J) this:

3. [37]

   The power to order a Basha inquiry resides in a trial Judge for the purpose of ensuring that a fair trial takes place. It is one of a number of inherent powers available to a trial Judge, which have the same end.

4. [38]

   Ultimately, a question as to whether or not there has or has not been a fair trial, and whether the verdict which has been returned can be impugned on the basis of some unfairness in the trial process, is a matter which is the subject of an appeal to this Court. Whether or not a trial was or was not fair is a matter which has to be viewed in light of the whole of the trial. Whether or not a trial Judge should or should not have ordered a Basha inquiry as part of an attempt to ensure a fair trial, is a matter which seems to me is one which can usually only be viewed in the context of the completed trial. There may be some exceptional cases where unfairness of the trial process can be readily identified at an earlier point in time, but that is not so here.

5. [39]

   As well, I accept, as the Crown has pointed out, that a refusal to permit a Basha inquiry is a ruling which can be revisited by the trial Judge, at the request of any party in the course of the trial, if circumstances permit.

6. [40]

   Accordingly, it seems to me that there is much to be said for the Crown’s submission that the refusal by her Honour to permit such an inquiry was not, and could not be, an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act, and was akin to a ruling on evidence.

7. [41]

   However, this application does not call for a final determination of that issue in the abstract because, having regard to what in fact occurred, I am satisfied that there was no interlocutory judgment or order made by the trial Judge capable of being the subject of interlocutory appeal.

8. [42]

   This is so for these reasons:

9. [43]

   In truth, counsel for the accused was asking to be allowed, before the trial commenced, to interrogate a witness, the protected confider, about a matter not referred to in her statement, in circumstances where she had indicated that she was not prepared to disclose that material. This request lacked any formality, was unsupported by evidence demonstrating the utility of such procedure, and was not the subject of any demonstrated power in the Court to require the disclosure of the information, even if the protected confider was sworn to give evidence.

10. [44]

    As it was left, all the trial Judge did was to indicate what she would do or not do, in the event that questions were asked of the protected confider. It was nothing more than an indicative ruling on evidence.

Conclusion

1. [45]

   I am unpersuaded that, in light of the peculiar circumstances here, there is any interlocutory judgment or order upon which the applicant can fasten the jurisdiction given to this Court under s 5(3) of the Criminal Appeal Act.

2. [46]

   Accordingly, I concluded that leave to appeal should be refused.

Orders

1. [47]

   These are the orders which I proposed, and which the Court made on 14 March 2017:

   1. (1)

      Application for Leave to Appeal filed 7 December 2016 be dismissed;

   2. (2)

      Application for Leave to appeal filed 1 February 2017 be dismissed.

2. [48]

   BEECH-JONES J: The background to the application is set out in the judgment of Garling J.

3. [49]

   The first issue that arose in this application was whether the subject matter of the applicant’s complaint concerned an “interlocutory judgment or order” (Criminal Appeal Act s 5F(3)). Whether a decision or determination by a trial judge amounts to an interlocutory “order” capable of grounding an appeal under s s5F(2) or (3) requires a consideration of the “character and [legal] effect of the decision” rather than the precise words used by the judicial officer (R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304 per Gleeson CJ; “Bozatsis”). Thus a ruling on evidence made during the course of a trial is not considered to be an order or judgment of the Court (R v Steffan). Such a ruling lacks any finality (Bozatsis at 303.7) in the sense that it neither determines some part of the proceedings nor amounts to a “command that something be done or not be done” (R v F [2002] NSWCCA 125 at [11] per Wood CJ at CL). However in Bozatsis a ruling by a trial judge that he would not permit the Crown to adduce any evidence was found to constitute an order capable of supporting an appeal by the Crown against an interlocutory order because the trial judge’s ruling was “in substance, refusing to permit the Crown to seek to make [its] case” (Bozatsis at 304.2 per Gleeson CJ).

4. [50]

   This application was framed as an application for leave to appeal from a refusal of a trial judge to “order” a “Basha inquiry”. The phrase “Basha inquiry” derives it names from the observation of Hunt J in R v Basha at 339 that he and other judges had on occasions adopted the practice of “permit[ing] an accused to cross examine a new witness on a voir dire before he was called in the trial”. The authority to do so appears to be the Court’s obligation to ensure a fair trial (id). However neither in Basha or in any of the other cases to which this Court was taken which discussed the concept of a Basha inquiry was there any necessity to identify precisely what “order”, if any, a Court makes in determining that such an inquiry will be conducted or in giving effect to that determination.

5. [51]

   A consideration of the variety of circumstances in which a Basha inquiry may be undertaken and the various steps involved in conducting such an inquiry confirms that there is no single answer to the question whether or not a determination to hold such an inquiry or a refusal to do so amounts to an “order” sufficient to ground an appeal under s 5F(2) or (3) of the Criminal Appeal Act.

6. [52]

   Thus, it is not uncommon for a trial judge to direct the undertaking of a Basha inquiry during the course of a trial in respect of a new witness. Such an inquiry might involve no more than the jury being absent from the Court room while the witness answers various questions designed to clarify some matter. Under that scenario the only step taken by the trial judge is to ask the jury to leave the Court room. Neither the taking of that step nor the refusal to take that step constitutes an interlocutory order. The character and legal effect of the decision does not have any final character. The matter can be re-agitated at a later time in the trial. This discussion does not exhaust the manner in which a Basha inquiry may be conducted during a trial but it suffices to demonstrate that the conduct of such an inquiry does not necessarily involve the making of an order.

7. [53]

   A trial Judge may also direct that a Basha inquiry take place prior to the jury being empanelled and the trial commencing. Sometimes this will merely involve the Court convening and the Crown arranging for a witness to attend voluntarily. The witness is sworn or affirmed and then cross examined on certain identified topics. Leaving aside any particular direction that the trial judge may give during the course of the examination, this process does not usually involve the Court undertaking any step that has the character of an interlocutory order. However in other cases it may be necessary for the Court to grant leave for the issue of a subpoena to secure the attendance of the witness who is to be examined or, if the person is “present at the hearing”, the Court may make an order under s 36(1) of the Evidence Act requiring them to give evidence. In these cases the granting of leave to issue the subpoena or the making of an order under s 36(1) of the Evidence Act (or the refusal to so order) constitutes an interlocutory order capable of grounding an appeal under s 5(3)(a) or (b) of the Criminal Appeal Act. In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 this Court entertained an appeal by the Crown under s 5F(2) against a refusal by a Magistrate to set aside a subpoena (see also KS v Veitch [2012] NSWCCA 186). It follows that in some cases it may be evident that the “character and effect” of a determination by a trial judge that a Basha inquiry will not be conducted prior to a trial amounts in substance to a refusal to compel the attendance of a witness to give evidence and is thus capable of grounding an appeal under s 5F(2).

8. [54]

   In this case, nothing in the exchange that occurred between the Bench and Counsel set out in the judgment of Garling J ever crystallised to the point that the refusal by the trial judge to conduct a Basha inquiry amounted to a refusal to make an order of the kind referred to in s 5F(3)(a). At the hearing of this application Counsel for the applicant contended that the refusal of the trial judge to allow the victim to be cross examined as to the name of her counsellor had the “character and effect” of denying to his client any possibility of obtaining a grant of leave under s 298(1) of the Criminal Procedure Act to issue a subpoena for the production of the counsellors documents. I do not accept that that was the inevitable effect of the trial judge’s conclusion. Rather, the position is that counsel for the applicant did not pursue any application for leave under s 298(1) but instead engaged in a dialogue with the trial judge about an appeal. Of course if counsel had made an application under s 298(1) and been refused then there would be no doubt that the refusal could have been the subject of an application under s 5F(2) of the Criminal Appeal Act.

9. [55]

   In these circumstances I was not satisfied that this application involved any appeal to this Court “against an interlocutory judgment or order given or made in … proceeding” (s 5F(3)(a)).

10. [56]

    Accordingly I joined in the orders of the Court made on 14 March 2017.