The King v Price [2025] NTSC 50

Crown: Office of the Director of Public Prosecutions

The King v Price [2025] NTSC 50

• [1] On 1 May 2025 I dismissed an application by the accused to hold a Basha inquiry. These are the reasons for that ruling.
• [2] The accused is charged with one count of aggravated unlawful entry of the complainant's residence and one count of robbery. Both offences are alleged to have been committed on 9 March 2023.
• [3] The complainant is a 78-year-old man who is confined to a wheelchair. There is no medical evidence as to the complainant's health however, the complainant's police statement of 9 March 2023 says that the contents were read to him because of "Alzheimer's Disease". The Crown, at the time of the hearing of this application, had not made an application that the complainant be declared a vulnerable witness.
• [4] The Crown case is that the accused unlawfully entered the complainant's unit at about 6pm on 9 March 2023. The complainant was watching TV in the loungeroom. The Crown allege that the accused knocked on the door and, when the complainant opened it, pushed her way in and tipped him out of his wheelchair. The accused is then said to have grabbed the complainant by the shirt collar and dragged him into his room, and thrown him onto the bed. She then went to a fridge and removed four beers, before taking his cigarettes from his pocket. The complainant also alleges that a small silver tomahawk was taken.
• [5] The complainant says in his statement of 9 March 2023 that he recognised the accused, although he didn't know her name, because she was the same person who had smashed his window nine months earlier.
• [6] The accused intends to plead not guilty and the matter is listed for trial in Alice Springs commencing 28 July 2025.
• [7] On 19 February 2025, a number of statements to police made by the complainant relating to allegations that various (different) Aboriginal women had broken into his unit, and assaulted and stole from him were disclosed by the Crown. Those statements relate to complaints about conduct of various alleged offenders on 3 September 2022, 8 September 2022, 10 November 2022, 6 March 2023, and 25 May 2023.
• [8] As to the identity of the alleged offenders, the statement of 3 September 2022 says that the complainant did not know the two young women alleged to have been involved, although he said they had been to his house previously asking for smokes. He says in the statement he was later told the girls' names and their address by a neighbour. The girls and the neighbour are named, and the girls' address is given in the statement.
• [9] In the statement of 8 September 2022 the complainant alleges that he was robbed by a named 15 year old girl who he said has been coming to his house and harassing him two to three times a week for two to three months, and often taking his things. This girl was said to be one of the two referred to in the statement of 3 September 2022.
• [10] The statement of 10 November 2022 alleges that on that day two Aboriginal girls 16-17 years old tried to break into the complainant's unit and smashed his kitchen window with a pole. The complainant said he could not describe or identify the offenders.
• [11] In the statement of 7 March 2023 the complainant alleges that a woman broke in and tipped him out of his wheelchair and stole from him on 6 March 2023. He said that the woman was Aboriginal with blonde hair. He did not know her name but recognised her because she had broken into his house 12 months previously. There is no statement as to the alleged previous incident.
• [12] There are two police statements concerning the allegations the subject of the current charges against the accused. The first is dated 9 March 2023. It contains the allegations summarised at [3] above.
• [13] The complainant's second, supplementary, statement was made on 16 March 2023. In it he states that he had not seen the woman before, seemingly contradicting the allegations in the first statement, made seven days earlier, that he "recognised" her. He goes on to say "it's the same person that keeps doing it - I can't describe her but she's in her 30's and indigenous". There is no context for that statement.
• [14] The final statement disclosed by police was made by the complainant on 25 May 2023 and relates to an allegation of burglary and robbery by a person known to the complainant as "Lynette".
• [15] There is no information about whether anyone, other than the accused, had been charged with any of the alleged offending.

• [16] When this matter was mentioned in the preliminary examination stream in the Local Court on 15 December 2023 there was an application for cross-examination of the complainant. Eight issues were identified.
• [17] The application for cross-examination was dismissed.
• [18] The matter was committed to this Court and mentioned in the Criminal Call-over (CCO) on 21 January, 21 February and 4 September 2024. On 4 September 2024 the current trial dates were allocated and the matter was also listed for a Basha inquiry[1] on 20 February 2025.
• [19] However, when the matter was called on on 20 February 2025 the Crown objected to the Basha inquiry proceeding. The basis for the Crown objection is that the application is inappropriate because it is either an excuse for the defence to try out lines of cross-examination or "fishing".
• [20] Defence argued that a Basha is appropriate and necessary as the only realistic way in which they can properly prepare for trial. I understand that the accused instructs her lawyers that she and the complainant had a relationship which involved transactional sexual activity. Defence say that on this occasion the accused withdrew her consent and that the complainant subsequently sexually assaulted her. Counsel for the accused also says that the complainant has made this complaint to stop the accused reporting his assault upon the accused to police.

Did the Crown agree to a Basha, and can they change their mind?

• [21] Before dealing with the merits of the Basha inquiry, defence first argued that it is now too late for the Crown to object to the inquiry as they agreed to the procedure at the CCO on 4 September 2024.
• [22] The Crown were represented at the CCO by a prosecutor who did not have carriage of the matter. That occurred because the prosecutor who had carriage had resigned on 23 August 2024 and a new prosecutor had not yet been allocated.
• [23] The transcript of the CCO on 4 September 2024 shows that there was no argument about whether a Basha inquiry was appropriate. This was despite the fact that the Crown had opposed the cross-examination of the complainant at the preliminary examination. There was no suggestion that any new information had been disclosed or that the complainant was to give additional evidence.
• [24] The transcript shows that Ms Williams, who appeared for the accused, told the Registrar that defence had sought an oral preliminary examination in the Local Court but it had been refused. The transcript also shows that Ms McKinney for the Crown frankly conceded that she was not familiar with the file and that she did not know which witness was required for a Basha. It is apparent from the transcript that neither the prosecutor nor the Registrar were aware that the issue might be contentious, notwithstanding Ms Williams' statement.
• [25] A decision as to whether to allow the Crown to object is discretionary. In this case there is no prejudice to the accused. In the circumstances, I am not satisfied that the Crown actively consented to the holding of a Basha. I think that the order of the Registrar effectively did no more than reserve a date. There is nothing which leads me to the view that the Crown should now be prevented from arguing that a Basha is inappropriate.

Should the complainant be cross-examined on a Basha inquiry?

• [26] This Court considered a similar question in R v Swan[2]. In that case the Chief Justice summarised the law noting that a Basha inquiry is a mechanism designed to ensure a fair trial where an accused has not been adequately informed of what evidence the witness will give. That can include a situation where the accused has not been able to cross-examine the complainant at a committal hearing.
• [27] At [32] his Honour said:[3]

In deciding whether there is a serious risk that the trial would be unfair, the court must consider the purpose of a committal proceeding and the limitations on cross-examination of a witness at a committal hearing. The Basha process is not designed to let the defence test out a line of cross-examination, and to see if risky questions produce favourable answers in the absence of the jury; or so the defence is more confident in cross-examining the witness. Such matters are not part of the purpose of committal hearings, and an inability on the part of the defence to pursue those purposes does not produce a risk of an unfair trial.

• [28] The fundamental test for whether a Basha inquiry should be held is whether it is necessary to ameliorate a serious risk that the trial would otherwise be unfair.[4]
• [29] In the Supreme Court of the Australian Capital Territory, Refshauge J commented, in relation to the then newly introduced ACT regime for committal proceedings which limited the cross-examination of witnesses, that it is not appropriate for the purpose of legislation regulating committal proceedings to be circumvented by too ready granting of a Basha inquiry. His Honour was of the view that the tests set out in the relevant legislation should be met before an inquiry was ordered.[5]
• [30] The onus is on the accused to establish that the Basha inquiry is necessary to ameliorate any unacceptable disadvantage or prejudice she would otherwise suffer at the trial. The accused person must also demonstrate in advance the particular issues which are to be pursued.[6]
• [31] Solid grounds must be advanced for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The bar is a high one. A Basha process is not a 'dry run' for the defence. Nor is it an opportunity to cross-examine the complainant as to matters of credit. The mere fact that an accused would like more information than is available in witness statements is not enough. Nor is a Basha inquiry a substitute for perceived inadequacies in a police investigation.[7] Those things are also not part of the purpose of a committal hearing and inability to pursue those purposes does not run a risk of an unfair trial.

• [32] The basis upon which defence seek a Basha in this matter is that the accused seeks evidence as to whether the complainant was engaging in a transactional sexual arrangement (sex in exchange for alcohol and cigarettes) with Ms Price on the day she is alleged to have robbed him. Defence counsel argued that the accused does not deny that she was in the complainant's unit. She says that she was invited in and was therefore not a trespasser, noting that her presence as a trespasser is element of count 1.
• [33] The issues which the defence seek to pursue on the Basha are:

a) Whether the complainant has been having transactional sexual interactions with other Aboriginal women. This is said to be context evidence, and potentially tendency evidence, although the potential tendency was not clearly identified; > > b) Whether the accused has had an intimate relationship with the accused and the nature of that relationship; and > > c) Allegations the complainant has made against other women in the statements referred to in the period September 2022 to May 2023, and whether the complainant was having sexual relationships with those women. That is said to be relevant to a coincidence notice.

• [34] Defence counsel argued that that information is not in the brief and is therefore a proper subject for a Basha and also that it is necessary that the complainant be cross-examined in order that the defence properly prepare for trial. In that regard the defence also say that the defendant's relationship with the accused, and with other Aboriginal women, is context evidence which would make it more likely that the accused's evidence about what happened is accepted.
• [35] Defence counsel said in argument that it is almost certain that the accused would give evidence in the trial.
• [36] This is not a case where there is an allegation that the Crown have failed to give sufficient particulars of the offending. In such matters there is authority for the proposition that a Basha may be used to cure the deficiency.[8]
• [37] Something more than a mere disadvantage to the accused from loss of opportunity to cross-examine the complainant must be shown. There must be some feature of the case which take it out of the ordinary and which establishes that it is necessary in the interests of justice for the complainant to give evidence at a Basha. Simply wishing to discredit the witness at trial is not a sufficient reason.
• [38] The accused's counsel argued that the matters raised are not speculative because they are based on instructions. It must be accepted that the accused has given certain instructions to her counsel as to what happened at the time of the alleged offending.
• [39] However, the proposed cross-examination seems to be predicated upon getting an anticipated version of events from the complainant and then showing that he is lying in order to discredit his evidence at trial. It was suggested, for example that the complainant would be cross-examined about his sexual health and then his medical records subpoenaed, presumably to verify any statements he made.
• [40] There is no reason why the defence could not cross-examine the complainant along those lines at the trial. Nor is there any reason why the complainant's medical records could not be subpoenaed if they are likely to be relevant. The proposed questions about his relationship with other women, and his motive to lie in this matter, are matters which go to credit. The proposed Basha inquiry seems to me to be largely an opportunity to try out those lines of cross-examination.

Relationship between the accused and the complainant

• [41] I have carefully considered whether the accused should be permitted to cross-examine the complainant about whether he knows the accused, the nature of his relationship with her, and what she was doing at the unit on that day. I have particularly considered whether a failure to do so will leave the accused in a position where she does not fully know the case against her and is potentially hampered in the preparation of her defence.
• [42] Leave to cross-examine the complainant at the preliminary examination in the Local Court was refused. The purpose of a preliminary examination is to determine whether there is sufficient evidence, taken at its highest, to put the accused to trial in relation to the charge, and to ensure that all evidence relied on by the Crown has been disclosed.[9]
• [43] Two matters relevant to an application to cross-examine a witness at a preliminary application appear to be also relevant on an application for a Basha because they go to the central question of whether there is a serious risk that the accused will not receive a fair trial. They are:

a) That the prosecution case is adequately disclosed; and > > b) That a fair trial will take place, including that the accused can adequately prepare and present a defence.

• [44] The statement made by the complainant on 9 March 2023 states that the person who broke in was female, Aboriginal, wore all black clothing, and had dark hair. He said that he recognised her because she had smashed his window nine months previously. Although the complainant says he made a statement about that there is no statement disclosed, unless it is the incident described in the statement of 10 November 2022. However, in that statement the complainant described two Aboriginal girls 16-17 years old as the perpetrators. The accused is a woman of 27, so I think it is unlikely that the accused is one of the young women described in the 10 November 2022 statements.
• [45] In his second statement of 16 March 2023, the complainant says that he had not seen the woman who broke in before. That appears to be inconsistent with the earlier statement. He then goes on to say 'it's the same person that keeps doing it - I can't describe her but she's in her 30s and indigenous'. He then states that he does not know anyone called Caroline Price. His evidence is ambiguous.
• [46] Defence conceded, for the purpose of this application, that the accused's fingerprint was found on the complainant's fridge inside his unit. The defence case is that the accused was an invitee.
• [47] I am not convinced that the ambiguity in the complainant's evidence means that there is a serious risk that the accused will not receive a fair trial if a Basha is not held. There is no reason why the complainant could not be cross-examined on those matters at trial. There is also no reason why the accused's lawyers cannot make necessary inquiries as to the persons named in the complainant's other statements before he is cross-examined as to that issue.

Issues as to relationships with other Aboriginal women

• [48] The desire to cross-examine the complainant about his relationships with other people, is, in my view, not based upon any solid foundation. The alleged offenders identified in two of the statements are named. Their addresses are given. There is no impediment to the defence preparing their case by taking statements from those witnesses, or indeed any witness. The complainant clearly says that he does not know the other people involved.
• [49] Counsel for the accused stated that the accused's lawyers have not made any inquires as to the whereabouts of those named or referred to in the statements, or subpoenaed the police, because they wanted to cross-examine the complainant first. Although it is a matter for defence what steps they take, the failure to make some fairly straightforward enquiries is not a reason to cross-examine the complainant on a Basha to explore what are essentially theories, albeit on instructions, as to the complainant's motivation to lie.
• [50] For all of the above reasons, the application to hold the Basha inquiry is dismissed.

[1] From R v Basha (1989) 39 A Crim R 337.

[2] [2024] NTSC 82 at [31].

[4] R v Sandford (1994) 72 A Crim R 160, 190-192 (Hunt CJ).

[5] R v Trong Ruen Bui [2011] ACTSC 102; (2011) 210 A Crim R 338, 340 [9] (Refshauge J).

[7] R v Greenfield [2023] NSWSC 1386, [39].

[9] _Local Court (Criminal Procedure) Act 1928 (_NT), s 105H.