R v Greenfield

1. [1]

   The accused, Stephen Greenfield, stands indicted for that he, on a day between 16 September 2015 and 21 September 2015, at Bathurst in this State, did murder Reginald Mullaly. He was arraigned upon that charge on 5 May 2023 and entered a plea of not guilty. His trial is fixed to commence on 20 May 2024, in Bathurst. It is estimated to require 8 to 10 weeks of hearing time.

2. [2]

   The accused has made application to cross-examine seven persons prior to trial, at a pre-trial hearing of the kind ordinarily known as a “Basha Inquiry”. The witnesses (or “requested persons”) are:

   1. (1)

      Shayne Miller

   2. (2)

      Zac Forbes (or Nancarrow)

   3. (3)

      Nicole Fawns

   4. (4)

      Brett Lucas

   5. (5)

      Simon Hearne

   6. (6)

      Glen Merz, and

   7. (7)

      Link Frame.

3. [3]

   Five of these persons - Miller, Forbes/Nancarrow, Fawns, Frame and Lucas - have been nominated by the Crown as witnesses to be called in its case at trial. Glen Merz has given a statement to investigating police but has not been nominated as a Crown witness. He will be called by the Crown at the trial or, at least, made available to the accused should the accused require him as a witness. Mr Hearne has not made a statement and is not understood to be a Crown witness.

4. [4]

   The accused contends that, in the absence of pre-trial cross-examination to explore the evidence that each witness can give on particular topics, he will be impermissibly prejudiced at trial. To understand the argument, it is useful to give some brief details of the circumstances of Mr Mullaly’s death before turning to the accounts of or by the persons the subject of the application.

5. [5]

   Mr Mullaly lived in the Bathurst area, although he did not have a place of residence, instead living on the streets. Aspects of his daily routine were fairly settled, and included regular attendances at a bakery on Howick Street in Bathurst, and travel by taxi. Mr Mullaly visited the bakery at about lunchtime on Wednesday 16 September 2015, and took a taxi the following day to an opportunity shop he regularly visited. The owner of the shop saw him there again on Friday 18 September 2015. The last sighting of Mr Mullaly prior to the discovery of his body may have been made at about 3:15pm on Saturday 19 September 2015, although there is some question as to the accuracy of that observation of him. The time of death is uncertain.

6. [6]

   On the morning of Sunday 20 September 2015, some acquaintances of the deceased went to the Heritage Dennison Bridge in Bathurst, a location where Mr Mullaly typically made camp in a makeshift shelter, to check on him. Kim Trindall approached Mr Mullaly where he lay in a bundle of bedding and discovered that he was dead. Minutes later she and her companion approached a police officer who was on duty nearby and reported what she had found. Senor Constable Stibbard got to the Bridge at about 10:25am on 20 September 2015 and, on inspecting Mr Mullaly, confirmed that he had died. Mr Mullaly’s wallet with a sum of cash inside was on his body. Inquiries of his bank do not suggest access to Mr Mullaly’s principal account by anyone other than him.

7. [7]

   A later post-mortem examination determined that Mr Mullaly died from multiple stab wounds, some 11 wounds in total having been inflicted to his right chest and right upper arm. It was thought likely that a non-serrated knife had been used in the stabbing. There was also evidence of blunt force injuries to Mr Mullaly’s face, although these injuries were not fatal. The forensic pathologist later estimated the time of death as between 16 and 20 September 2015. Fly larvae were observed in a chest wound, suggesting some delay between death and the discovery of Mr Mullaly’s body.

8. [8]

   Much of the application for a Basha inquiry turns upon what witnesses may have known prior to the discovery of the body, or prior to any information having been released publicly as to the cause of death, and whether admissions to criminal conduct have been made.

The Areas of Evidence in Issue

1. [9]

   A considerable amount of documentary material was filed in support of the application, and marked Ex VD1.1 to Ex VD1.23. The most straightforward means of taking in what evidence witnesses can or may be able to give, as suggested by the material, is by use of a table. Attached to these reasons is a table in which I have briefly summarised the account or accounts the requested persons have given to police or the Coroner, and the accounts others have given of the requested persons. I have not included evidence concerning the accused’s alleged involvement.

2. [10]

   What follows assumes familiarity with Ex VD1 or the summary table.

3. [11]

   Shayne Miller is the only person, other than the accused, who was expressed to be a person of interest at the coronial inquiry. There is some suggestion from others that he may have been involved in, or knowledgeable of, Mr Mullaly’s murder, and the accused points to Mr Miller as, potentially, the true murderer, whom he should be permitted to question in advance of the trial.

4. [12]

   The admissible evidence implicating Mr Miller is sparse. As can be seen from the annexed table, Kurtis Petersen, Adell Fuller, Tammy Lysaught and Brett Lucas have all given information that raises a question as to Mr Miller’s involvement. The accused wishes to cross-examine Mr Miller as to the content of conversations referred to by these witnesses, and the circumstances in which they were made.

5. [13]

   Mr Miller has been interviewed by police on two occasions, 22 September 2015 and 1 August 2016, and he gave a statement to investigators, on 22 November 2015 in which he adopted his first interview as truthful. In that first recorded interview, given after he attended Bathurst Police Station voluntarily with the accused, Mr Miller said that the accused had told him on the previous day (21 September 2015) that the police were looking for him, the accused, for a stabbing or shooting “or something”.

6. [14]

   Mr Miller was not asked during the interviews with police about the admissions he is said to have made to involvement in Mr Mullaly’s death, as investigators did not yet have that information.

7. [15]

   Mr Nancarrow has been implicated in Mr Mullaly’s death by Mr Miller’s assertion that Nancarrow confessed to having been present when “Porky” killed Mr Mullaly. Kurtis Petersen’s account points to Mr Nancarrow as having some knowledge of the alleged offence, whilst Adell Fuller’s statement potentially gives rise to an inference as to his involvement in it.

8. [16]

   Mr Nancarrow gave a statement to police on 3 November 2015 and was called to give evidence at the Coronial Inquiry on 20 November 2018. To the Deputy State Coroner Mr Nancarrow denied any involvement in Mr Mullaly’s death, but the accused wishes to cross-examine him about his movements at about that time, something he does not appear to have been previously asked about.

9. [17]

   Ms Fawns was involved in a relationship with Mr Miller at the relevant time.

10. [18]

    Adell Fuller has given an account of an incident involving Ms Fawns, Mr Miller and Mr Nancarrow that might point to involvement in Mr Mullaly’s murder. Kurtis Petersen referred to overhearing others speak of her involvement. Tammy Lysaught says Ms Fawns was present with Mr Miller when Miller was asking Adell Fuller for a knife to pass on to police; she is said to have been aggressive.

11. [19]

    Ms Fawns was interviewed repeatedly by police, on occasion at her own request. She also gave evidence before the Coronial Inquiry. She was not asked about the accounts of others pointing to her possible knowledge of the circumstances of Mr Mullaly’s death.

12. [20]

    The accused wishes to cross-examine her as to the content and circumstances of the conversations that are said to amount to admissions.

13. [21]

    Mr Lucas gave a statement to police on 27 July 2022 in which he referred to Mr Miller and Ms Fawns speaking “generally” about Mr Mullaly having been killed for gems and money. In a conversation with Detective Senior Constable (“DSC”) Graham on 23 March 2016 he provided other information that was not included in his statement. To DSC Graham Mr Lucas gave an account of a conversation involving Nicole Fawns in which she implicated two persons, including Zac Nancarrow, in Mr Mullaly’s death. Although it is not clear, she may also have been present with Mr Miller when, according to Mr Lucas’ account to police, reference was made to “planting” the idea of responsibility for the murder in the accused’s head because he was “too drug fucked to know any different”.

14. [22]

    The accused submits that he is entitled to know by cross-examining the witness if the account Mr Lucas is said to have given to police but not included in his statement has any substance.

15. [23]

    Mr Hearne has not made a statement. Glen Merz told police that Hearne gave him a knife that was supposedly used to kill Mr Mullaly. Another witness known as RS1498010 gave a similar account received from Merz. Police were handed a knife on 8 August 2016 which was subsequently found to have DNA consistent with that of Hearne upon it. There is no evidence that this knife was used to stab Mr Mullaly.

16. [24]

    The accused wishes to cross-examine Mr Hearne about “evidence exculpatory of the accused”.

17. [25]

    Mr Merz is said by some to have acquired a knife that was supposedly used in the attack upon Mr Mullaly. Brett Lucas told DSC Graham that Merz might have had the knife at some point, and RS1498010 gave an account of having been told that Merz caused Simon Hearne to locate a knife connected with the murder.

18. [26]

    Mr Merz made a statement to police and said he had been given a knife said to be the murder weapon.

19. [27]

    The accused wishes to cross-examine Mr Merz as to “inconsistencies” between his account of the knife and those given by others, and also as to any knowledge he may have of the involvement of Mr Hearne, Brett Dove, Mitchell Hussey and Luke Booth.

20. [28]

    According to Shayne Miller, Mr Frame made a “joke” to the effect of “he’s been dead for 48 hours”, in conversation on Sunday 20 September 2015, the day on which Mr Mullaly’s body was discovered. He also seemed to have unusual access to funds at this time.

21. [29]

    Mr Frame made a short statement to police on 1 September 2022 asserting he had no knowledge of the murder.

22. [30]

    The accused wishes to cross-examine him as to his movements in the period covered by the indictment.

The Law

1. [31]

   A “Basha Inquiry” is a now long-familiar process by which a witness may be called in the absence of the jury so that questions can be put to the witness. The nomenclature derives from the decision of R v Basha (1989) 39 A Crim R 337 wherein Hunt J (as his Honour then was) referred to his own practice of permitting a “new witness” to be cross-examined in the absence of the jury. This process was adopted to compensate for the inability of an accused person to test the evidence of any newly emerged witness at an earlier committal hearing.

2. [32]

   In R v Sandford (1994) 33 NSWLR 172 his Honour, by then Chief Judge at Common Law, responded to some judicial criticism of his description of the questioning of witnesses in the absence of the jury as “a voir dire”, and noted, at 181, the utility of the procedure:

3. [33]

   Both Basha and Sandford were decided in an environment where committal hearings were routinely conducted in the Local Court, with accused persons having an opportunity to cross-examine Crown witnesses. The process that came to be referred to as a “Basha inquiry” was intended to supplement the committal proceedings. The procedure is not, however, strictly confined to instances when a witness who should have been examined at committal could not be tested before the Local Court for some reason. Basha inquiries continue to be held relatively regularly in the criminal trial courts, even though full committal hearings are a rarity under the current statutory scheme. Frequently, the procedure will involve no more than a few questions on some specific topic asked of a witness in the course of the trial, at a time when the jury has been sent out. The intent in such instances is not ordinarily for a course of cross-examination of the type formerly seen at full committal hearings.

4. [34]

   The conduct of committal proceedings is now governed by Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW); s 82 empowers a magistrate to direct a witness who is not referred to in s 83 or s 84 to attend at committal, but only “if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence”. The attendance of witnesses at committal is now the exception rather than the rule, as it was in the nineteen eighties and early nineteen nineties.

5. [35]

   Although it is by no means certain that the accused would have secured an order for the attendance of the requested witnesses at any committal had he made application for an order pursuant to s 82, or successfully applied for a witness to be called at the coronial inquiry pursuant to s. 60 of the Crimes Act 2009 (NSW) that does not necessarily prevent the trial court from permitting a Basha inquiry to proceed. The test is that given in Basha and Sandford: that there is a serious risk of an unfair trial if the accused is denied the opportunity to cross-examine the nominated witnesses. See also R v Xie (No. 11) [2014] NSWSC 1977 and R v Kennedy (1997) 94 A Crim R 341.

Submissions

1. [36]

   Principally due to the pressure of time, I do not propose to set out the submissions of the parties in full. What follows is the briefest of summaries.

2. [37]

   The accused submits that he is entitled to know what the requested persons would say as to their involvement in or knowledge of Mr Mullaly’s death, and to do so with sufficient time to allow him to investigate anything of apparent significance that might emerge from the Basha inquiry. Absent that, and particularly the time before trial to investigate matters that might emerge in evidence, he contends that he is prejudiced, and his trial will be impermissibly unfair.

3. [38]

   The Crown argues that the accused already has a considerable amount of information concerning the possible involvement of others in the death of Mr Mullaly that he will be able to test at trial, and there is no occasion for a separate and wide-ranging inquiry that would amount to an investigation into the circumstances of death. The Crown points to the volume of information already known to the accused, through the extended police investigation into Mr Mullaly’s murder, and the coronial inquiry that followed.

Consideration

1. [39]

   The bar in satisfying the Court that a Basha inquiry is necessary is quite a high one. It is not enough that the questions intended to be directed to witnesses at any Basha procedure might produce embarrassing or unhelpful answers. It is not enough that an accused person would like to have more information than is currently available through witness statements or depositions. A Basha inquiry cannot be used as a substitute for any perceived inadequacies in the police investigation or for a committal examination that is no longer permitted to an accused. An inquiry may only be permitted where the failure to allow the questioning of witnesses could so prejudice the accused as to lead to his or her trial being unfair.

2. [40]

   For all but two of the requested persons that high bar has not been met by the accused.

3. [41]

   The most straightforward application to address is that for the attendance of Simon Hearne at a Basha inquiry. Mr Hearne has never made a statement to police and claims to have no knowledge of the circumstances surrounding Mr Mullaly’s death. The only basis to think that he may have some knowledge notwithstanding is hearsay and gossip.

4. [42]

   The Crown does not intend to call Mr Hearne at trial and, even if it appeared that he may have had admissible evidence to give, the fact that he is not a Crown witness is effectively an end to the matter, there being no suggestion that the accused plans to call him as a witness. The Court has no power to direct the Crown as to the witnesses to be called in its case: Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19; HO v R [2023] NSWCCA 245.

5. [43]

   Even had the Court had the power to direct the Crown to call Mr Hearne I would not have done so. Even Mr Merz, who provides the most thorough account of Mr Hearne as a person who may possess relevant knowledge, does not suggest that Mr Hearne had first-hand knowledge. It is speculation based on gossip to suggest Mr Hearne might be a witness with admissible evidence to give.

6. [44]

   The position is not greatly different with respect to Nicole Fawns, Glen Merz, and Link Frame.

7. [45]

   Having regard to her acknowledged heavy use of prohibited drugs at the relevant time, Nicole Fawns has given what might be regarded as detailed accounts of her movement and the movements of others, and answered to the asserted extent of her impaired memory questions concerning her own involvement. There is a wealth of material to put to her in cross-examination at trial through which to impugn her credit. To deny the accused the opportunity to question her about the assertions of others concerning her conduct will not prejudice the accused’s trial; questions of that nature can be put and potentially with good effect. There is no compelling reason to allow what would be no more than a “test run” of the procedure in the absence of the jury.

8. [46]

   The information Glen Merz has, even taking his statement at its highest, appears to be no more than gossip. He was given a knife and told certain things about the knife, but not by any person said to have actual knowledge of the use to which the knife was put, or who admitted to involvement in Mr Mullaly’s murder or its aftermath. Inconsistencies in the re-telling of rumours among drug users, or from an anonymous informant, is to be expected; it does not amount to a legitimate line of forensic inquiry admissible at trial. Neither does the mention of names of persons who might have some peripheral knowledge of matters connected with a knife asserted to have been used in the murder of Mr Mullaly amount to a basis for a Basha inquiry. If a question that might elicit admissible evidence of a witness with first-hand knowledge of a relevant matter can be crafted, it can be put at trial. There is insufficient information to permit what would amount to an investigation into a possible role in Mr Mullaly’s death by Mr Hearne, Brett Dove, Mitchell Hussey, or Luke Booth. It is not the role of a trial court to investigate crime.

9. [47]

   Link Frame has made a statement in which he said that he had no knowledge of Mr Mullaly’s murder. The most that ties him to some knowledge is a “joke” Mr Miller says Mr Frame made on the day on which Mr Mullaly’s body was found. The evidence of his possession of unexpected assets on 20 September 2015 appears unconnected with Mr Mullaly since there is no evidence of robbery, despite the rumours about Mr Mullaly’s possession of gemstones and the like. There is no admissible evidence that does more than place Mr Frame as one of a group of drug addled individuals speculating and gossiping about a local crime in which some members of the group, including the accused, may have had some involvement. Any questions seeking to elicit admissible evidence can be asked at trial.

10. [48]

    Zac Nancarrow has provided accounts to police and the Coroner of his knowledge of events surrounding Mr Mullaly’s death; he has denied any involvement. Whilst there is evidence capable of raising the reasonable possibility of his involvement in the crime, the accused is on notice of that information and is well placed to make forensic use of it at trial.

11. [49]

    The area of questioning for any inquiry would be directed to Mr Nancarrow’s movements during the period of time covered by the indictment. Information from the witness about his own movements is available in his evidence to the coronial inquiry. The evidence is scattered and unsatisfactory, but that may be no more then the consequences of his heavy drug use at the time. It is, at best, speculative to expect to obtain any better details from him in cross-examination more than eight years after the event. If Mr Nancarrow was so drug affected as to be unable, in 2018, when under examination in a Coroner’s Court where the rules and niceties of evidence do not apply, to remember even the day on which Mr Mullaly’s body was found, it is most unlikely he will be able to add anything eight years after the event. I can see no prejudice in not allowing him to be questioned in the absence of any jury.

12. [50]

    The two witnesses where the Court can see a risk of some prejudice to the accused in the absence of pre-trial questioning are Brett Lucas and Shayne Miller.

13. [51]

    Mr Lucas appears to have given considerably more information to DSC Graham in conversation on 23 March 2016 than he provided in his formal statement of 27 July 2022. It is not clear why that is. One of the potentially critical pieces of information to the conduct of the accused’s case that is not in Mr Lucas’ statement is that concerning a discussion of “planting” an idea in the accused’s consciousness that it was he who was responsible for Mr Mullaly’s murder. This information, if it should prove to be first-hand knowledge of a plan to cause the accused to falsely believe himself guilty of murder, could be vital to address evidence of admissions and inculpatory conduct by the accused, potentially raising a doubt as to its reliability. The accused should have the opportunity to question Mr Lucas as to what he said to DSC Graham on this subject, the source of his knowledge of it, the details of any conversation including the speakers and words used together with those present, and why it was not included in his statement.

14. [52]

    The Court will permit Mr Lucas to be questioned at a Basha inquiry concerning those limited areas.

15. [53]

    Mr Miller was the second person, additional to the accused, who was referred to the Director of Public Prosecutions by the Deputy State Coroner at the conclusion of the Coronial proceedings as a known person against whom a jury might return a guilty verdict for an indictable offence, pursuant to s 78 of the Coroners Act 2009 (NSW). Although Mr Miller was questioned in a rigorous way by investigating police, he was not asked directly about the admissions or inferred admissions he is said by Kurtis Petersen, Tammy Lysaught, and Adell Fuller to have made. Whilst Adell Fuller’s evidence is not evidence of an admission made by Mr Miller to the murder of Mr Mullaly or to involvement in it, what Mr Petersen asserts he heard can be regarded as such. Ms Lysaught’s account also points to an admission, if an equivocal one. Ms Fuller’s observations might be regarded as those of highly suspicious activity concerning which the accused should be able to question Mr Miller, sufficiently in advance of the trial to permit investigation of any relevant responses.

16. [54]

    Further, the asserted statements by Mr Lucas as to Mr Miller’s presence when “it was discussed” that the accused’s guilt would be “planted” in his mind is a topic of sufficient importance that, subject to anything Mr Lucas might say if called before Mr Miller, could produce unfairness if the accused was denied the opportunity of examining Mr Miller about it.

17. [55]

    Accordingly, the Court will permit Mr Miller to be questioned prior to trial as to the following matters:

    1. (1)

       The assertions in the statement of Adell Fuller of 1 July 2022 concerning Mr Miller’s supposed attendance at her home with Mr Nancarrow and Ms Fawns, when Ms Fawns had blood on her skirt and Mr Nancarrow boiled a knife.

    2. (2)

       The assertions made by Kurtis Petersen in his interview on 3 October 2015 as to Mr Miller speaking to Mr Nancarrow in a separate room about “stabbing a guy” at a house and then driving the man to the bridge, including any involvement by Nicole Fawns.

    3. (3)

       The account of Tammy Lysaught in her statement of 21 October 2015 in which Mr Miller purportedly said, “I’m fucked anyway, they know I did it”.

    4. (4)

       Subject to what falls from any prior questioning of Brett Lucas, the account he gave to DSC Graham of Mr Miller having knowledge of an idea to “plant” the belief in the accused’s mind of his responsibility for the murder.

18. [56]

    Brett Lucas and Shayne Miller are to attend Court on 21 November 2023 to give evidence at a preliminary hearing held in advance of the trial concerning matters identified in these reasons.