Williams, Brincat & Traglia v DPP [2004] VSC 516

Mr P. Coghlan QC, the Director of Public Prosecutions for the State of Victoria, with Mr G Horgan SC

2. On 21 June 2003, Jason Moran and Pasquale Barbaro were shot and killed at Pascoe Vale. On 25 October 2003, Michael Ronald Marshall was shot and killed at South Yarra.

5. On 25 October 2003, Victor Brincat and Mr X[1] were arrested, and charged the following day with the murder or Michael Marshall. They have been in custody ever since. On 22 June 2004, Mr X made a statement to the police concerning the murder of Michael Marshall which implicated Victor Brincat and Carl Williams. According to the statement, Carl Williams requested, organised and directed Victor Brincat, assisted by Mr X, to kill Michael Marshall.

8. On 13 July 2004, Mr X made another statement, this time concerning the murders of Jason Moran and Pasquale Barbaro. He implicated Carl Williams, Victor Brincat and Alfonso Traglia ("the accused") in the murders.

11. According to the statements, Mr Brincat killed the three men by shooting them. He did so at the request and direction of Mr Williams. The killings were organised and planned by Mr Williams, assisted by Messrs Brincat and Mr X. Mr X alleges that Mr Traglia assisted with the planning and organisation of the death of Mr Moran. It appears common ground that Mr Barbaro was unexpectedly killed. It was not part of any plan to kill him.

14. On 16 August 2004, Messrs Williams and Brincat, then in custody, were served with notices of trial in relation to the murders of the three men. On the same day, Mr Traglia was charged with the murders of Messrs Moran and Barbaro.

17. On 30 August 2004, a presentment signed by the Director of Public Prosecutions ("DPP"), Mr Paul Coghlan QC, was filed in this Court charging Messrs Williams, Brincat and Traglia with the murders of Jason Moran and Pasquale Barbaro, being Counts 1 and 2, and presenting Messrs Williams, Brincat and Mr X with the murder of Michael Marshall, being Count 3. This had the effect of presenting the accused for trial directly to this Court without a committal proceeding taking place.

20. The Director informed the Court that it was proposed that there be a joint trial dealing with the three counts. Counsel on behalf of each accused informed the Court that application would be made for separate trials. The Court was also informed, and it appeared to be common ground, that if there was to be a committal the charges would be heard together or one after the other by the same Magistrate.

23. Police briefs were served on the three accused on or about 30 August 2004.

26. On the day the presentment was filed, a directions hearing took place before Teague J and it was foreshadowed at that and following directions hearings that an application would be made to stay the trial because no committals had occurred. All told there have been six directions hearings and it was clear by 19 October 2004 that each of the accused was making an application for a stay of the proceeding until a committal is held. That is the application before the Court this day.

29. There is no initiating document seeking a stay and the Court proceeds on the basis of the oral application. The only affidavit material before the Court is the affidavit of Vaille Anscombe, a solicitor in the Office of Public Prosecutions of Victoria who swore her affidavit on 17 September 2004. She exhibited to her affidavit the two statements made by Mr X, a copy of the charges of murder against Mr Traglia in respect of the Moran-Barbaro murders, the police brief at that time in relation to Michael Marshall's death, and the police brief at that time concerning the deaths of Messrs Moran and Barbaro. Counsel for the accused confirmed that their oral application was for an order that the proceeding instituted by the filing of a presentment on 30 August 2004 in this Court against Carl Williams, Victor Brincat and Alfonso Traglia, be stayed pending the hearing and determination of a committal proceeding or proceedings.

32. Ms Anscombe swore that the solicitors acting for Mr X stated that he intends to plead guilty to the murder of Mr Marshall and will undertake on his plea to give evidence in accordance with his statements in the trial or trials involving Messrs Williams, Brincat and Traglia.

35. I was informed by Mr Heliotis QC for Mr Williams, that he believed that Mr X's solicitors had ceased to act for him, but it appeared from what the Director said to the Court that the solicitors have been reinstated. However, the more important matter, the Court was told, was that it was expected that Mr X would plead guilty to the Marshall murder and be sentenced in January 2005. He would then be granted an indemnity in respect of the death of Messrs Moran and Barbaro to enable him to give evidence in the proceedings against Messrs Williams, Brincat and Traglia.

38. As I have stated, Messrs X and Brincat were charged in October 2003 with the murder of Michael Marshall, and those charges have followed the usual procedure. A committal proceeding listed for 7 September 2004 was adjourned to 10 December 2004.

41. I was informed that in the event of the Court refusing the present application, the Director of Public Prosecutions will withdraw all proceedings in the Magistrates' Court against the accused.

44. The complaint on this application by counsel on behalf of each accused is that the procedure adopted is unfair in the circumstances, and will deny each a fair trial. Accordingly it is submitted the proceeding in this Court instituted by the presentment should be stayed pending a committal proceeding in respect to each charge of murder.

47. One matter of importance in the application is the question of delay, it being put on behalf of the Crown that the charges should be heard as soon as possible. It is always difficult to make an assessment of the likely dates of the hearing of a committal, especially a contested one, and the trial. Inquiries have been made of Mr John Andrews of the Criminal Trials Listing Directorate of this Court, and doing the best he can, the first possible date for the trial could be May 2005, with the most likely date being late July. In the year 2005, there will be eight judges of this Court hearing criminal matters. Mr Andrews tentatively suggested that it may be possible if it is proposed to hold a Basha inquiry, that it could occur in May/June 2005 with the trial commencing after the short vacation in July. Inquiries have also been made by Mr Andrews, at my request, of the Committal Co-ordinator at the Magistrates' Court, and doing the best she could, it was thought that a contested committal of, say, three to four weeks, could be heard at the earliest in June, although it was pointed out that with preference being given to those in custody it could be earlier if there were sufficient resources. The Committal Co-ordinator also indicated that it may be possible to have the committal brought forward because more resources were being made available to deal with these and other murders involving persons known to the police.

50. I have discussed possible dates with counsel and each accepted that it is a difficult exercise but on the basis of the observations made by counsel and the Court's investigation, if a trial is to proceed directly in this Court, a Basha inquiry could take place in May/June and the trial in late July 2005. If a committal is to take place, there is the prospect it could occur in the first six months of 2005 and if this was so, the trial could commence in the latter half of July 2005. I asked each counsel to indicate the likely length of a committal proceeding. Mr Heliotis on behalf of Mr Williams informed the Court that as presently advised he only wished to cross-examine Mr X and he thought this would take about five days. Mr Grant on behalf of Mr Brincat informed the Court that he wished to cross-examine not only Mr X but also a number of other witnesses. Notice was given on 15 March 2004 on behalf of Mr Brincat seeking the attendance of some 18 witnesses and consent was given by the Director of Public Prosecutions on 19 March 2004 to that course. Mr Grant stated that he thought the committal would continue for about 13 days so far as Mr Brincat's involvement was concerned. Ms Gobbo on behalf of Mr Traglia estimated another three days' cross-examination on his behalf. All told, it would appear that any committal proceeding would occupy about four sitting weeks. It follows that if a Basha inquiry was conducted, it would involve approximately the same period in this Court.

53. When a person is charged with an indictable offence, the law requires that a committal take place before a Magistrate to determine whether the person should stand trial[2]. It is a procedure that has been followed in one form or another in the criminal law going back hundreds of years. The history is conveniently summarised by Dawson J in Grassby v The Queen [3].

56. A committal proceeding achieves a number of objects. Its primary purpose is to give the opportunity to the accused person to have the charge dismissed against him or her on the ground that there is insufficient evidence. However, it is also well recognised that there are other purposes. Dawson J in Grassby v The Queen[4] summarised them as follows:

"It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s.41(6) of the Justices Act (NSW) that the magistrate should discharge a defendant if he is of the opinion that, having regard to all the evidence, a jury would not be likely to convict. Furthermore, the value of the committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial: Barton v The Queen."

60. The Victorian equivalent of s.41(6) of the Justices Act is clause 23 of Schedule 5 to the Magistrates' Court Act 1989[5]. The test in Victoria is whether "the evidence is not of sufficient weight to support a conviction for any indictable offence" and if this be so the defendant is discharged.

63. Despite the requirement to hold a committal, it is also clear law and has been so for hundreds of years that the Crown has the right to file a presentment directly in the Court without any committal proceeding taking place or any direction by a Magistrate that the accused stand trial. It is unnecessary to trace the history of the common law, because the power is the subject of legislation and has been so for well over one hundred years in this State [6]. Indeed, s.353(1) of the present Crimes Act 1958 is in similar terms to s.20 of the Judicature Act 1874 (Act 502). Section 353(1) of the Crimes Act 1958 gives power to the DPP or any Crown prosecutor in the name of the DPP to make presentment directly to this Court. Section 56(1)(a) of the Magistrates' Court Act 1989 provides the obligation to hold a committal proceeding subject to exceptions, one of which is the power given by s.353 of the Crimes Act. Section 56(1)(a) of the Act provides:

"(1) A committal proceeding must be held in all cases in which the defendant is charged with an indictable offence, except cases where -

(a) pursuant to common law or section 353 of the Crimes Act 1958, the presentment is preferred by the Director of Public Prosecutions or a crown prosecutor without a committal proceeding having been conducted."

68. Another exception is where the defendant seeks to stand trial without a committal proceeding[7].

71. Because of the provisions of the Public Prosecutions Act 1994, no Crown Prosecutor may make a presentment of a person for an offence without a committal because the decision is a special decision within the meaning of that Act[8]. "Special decision" is defined by s.3 as including making a presentment of a person for an offence without a committal proceeding being conducted. Because it is a special decision the powers of the Director are also curtailed.[9] By reason of s.22(2), the Director may only perform the function of making a presentment without a committal proceeding being conducted after having obtained the advice of the Director's Committee on that special decision. The Committee is defined by s.23. Having obtained that advice, the Director has the power to make a presentment without a committal proceeding occurring. Once that procedure is followed, it is clear on the authorities that the decision is unexaminable in a court of law.[10]

74. It follows that on this application it is not open to this Court to examine the reasons for the decision to make a presentment without a committal proceeding. However, accepting first that the Director has the power and secondly the inability of this Court to examine the decision, that is not the end of the matter.

77. This Court now controls the proceeding instituted by the filing of the presentment, and accordingly this Court will ensure that the proceeding is conducted fairly and in accordance with accepted standards of justice. In Barton v The Queen, Gibbs ACJ and Mason J said[11]:

"It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial." (Emphasis added).

81. The other members of the High Court agreed with the statement of legal principles expounded by Gibbs ACJ and Mason J. However, there was a division of opinion as to the question of fairness and the effect of a failure to hold a committal proceeding.

84. Gibbs ACJ and Mason J (Aickin J agreeing) expressed the view that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. Gibbs ACJ and Mason J[12] said:

"It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. For us to say, as has been suggested, that the courts are concerned only with the conduct of the trial itself, considered quite independently of the committal proceedings, would be to turn our backs on the development of the criminal process and to ignore the function of the preliminary examination and its relationship to the trial. To deny an accused the benefit of committal proceedings is to deprive him of the valuable protection uniformly available to other accused persons, which is of great advantage to him, whether in terminating the proceedings before trial or at the trial."

88. On the other hand, Stephen, and Wilson JJ were of the view that it was not an essential prerequisite of a fair trial that it be preceded by a committal proceeding.

91. Stephen J[13] forcefully made the point:

"The contrary view would place a significant practical qualification upon the Attorney-General's unexaminable power to file ex officio indictments, a power which applies to ex officio indictments generally without distinguishing between those filed after discharge by a committing magistrate and those filed in the absence of any committal proceedings."[14]

95. The majority of the Judges agreed on the test to apply in an application such as the present. It is necessary to consider where, on the balance of the interests of the accused and the community, justice lies[15].

"We must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused."

"Whether such a stay should be granted depends upon a weighing up of the relevant interests which are at stake - on the one hand, the accuseds' interest in obtaining a fair trial, and on the other hand, the Crown's interest in bringing the accused to trial on serious charges which will require to be proved by the testimony of overseas witnesses."[17]

"Their absence (committal proceedings) will, however, always call for a careful evaluation by the trial court of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial. Committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process and for the accused to be deprived of them necessarily puts a court upon an inquiry."

"The considerations which, on an evaluation, weigh on the other side of the scales, lending weight to the Crown's opposition to a stay, will no doubt be as various as are the circumstances of each case. Each will require separate assessment, their combined weight then being balanced against the detriments to the accused. However in the balancing process the existence of the Attorney-General's right to file an ex officio indictment without prior committal proceedings must not be lost sight of. Its existence means that the mere absence of committal proceedings, although necessarily involving loss of the opportunity to cross-examine Crown witnesses before the trial, will not of itself suffice as grounds for a stay. However, circumstances which make that loss particularly prejudicial to the accused must weigh heavily in favour of a stay." (Emphasis added)

114. In my opinion, the issue that the Court must consider and determine, whether a trial should proceed without a committal proceeding, requires the Court to balance the interests of the Crown acting on behalf of the community and the interests of the accused, to determine whether a trial without a committal would be unfair when judged by reference to accepted standards of justice.[20]

117. It requires the Court to carefully evaluate the circumstances and balance the interests of both the Crown on behalf of the community and the accused.

120. The accused have brought this application to stay the proceeding, and accordingly, in my view, the burden is upon them to persuade this Court that a stay should be granted. It is their application. The Crown has the right to make a presentment without a preliminary hearing and accordingly the Court should proceed on the basis that it is appropriate unless the accused persuade the Court to the contrary. The accused assert that the proceeding should be stayed and, in accordance with basic principles, would carry the burden of persuading the Court that the proceeding should be stayed. Although counsel in their written submissions suggested that the burden rested upon the Crown to justify the making of the presentment without a committal proceeding, they accepted during argument that they bore the burden of proof. I have raised the question of the burden because it seemed to be part of the applicants' argument that the onus is on the Crown to demonstrate exceptional circumstances justifying the direct presentment. I do not accept that that is the test. In seeking to discharge the burden which rests upon the applicants to persuade the Court to grant a stay history is on their side. This is because committal proceedings have always played an important part in the criminal process and the absence of same generally tends to put the accused at a disadvantage.[21]

123. However, in my opinion if the Crown wishes to oppose an application for a stay, it is necessary for the Crown to place before the Court reasons why the normal process has not been followed. The Director faintly suggested that he was not obliged to put the reasons before the Court, but in my view if the Crown wishes to oppose the application, it is necessary to identify the reasons why presentment was made directly. This must be so to enable the Court to carry out the balancing process.

126. Since Barton was decided in 1980, a number of changes have occurred in relation to the criminal process. Now legislation requires that the brief prepared by the police must contain written statements on oath and further, in a committal proceeding, there are now procedures which must be followed which have the aim of restricting the opportunity to cross-examine witnesses and to expedite the whole process. The other important change in criminal procedure has come about by reason of the decision of R. v Basha[22] and the practice which is now adopted in this State, of pre-trial examination of witnesses before the trial judge.

129. Mr Basha was committed for trial for supplying heroin. A committal took place. The person who received the heroin was an undercover police officer who did not give evidence at the committal. Prior to trial the prosecution informed the accused of its intention to call the officer as a witness and supplied the accused with a statement of evidence. The District Court Judge held that the calling of the witness by the prosecution in the circumstances was unfair and directed the case be returned for a fresh committal proceeding. The DPP appealed to the Court of Criminal Appeal which held that the District Court Judge could not direct the case be returned for a fresh committal proceeding, but recognised that he had the power to stay the proceeding to ensure a fair trial. The question then arose as to how the prejudice to a fair trial could be removed and the appeal Court held that it would have been open to the Judge to have permitted counsel for the accused to cross-examine the new witness on a voir dire before he was called at trial. This procedure has been used often in this State since, and is known as a Basha inquiry. The practice was referred to with approval in DPP v Denysenko and Ors [23]. Indeed the practice is not confined to one witness. Brooking JA[24] said this:

"Let it be supposed that it was in the interests of justice that the defendant be able to cross-examine the three witnesses on what I will call the new matters before the trial gets under way. Such an examination can be held before the judge. One can, as I have said, well understand the unwillingness of his Honour Judge Hassett to have a very large number of witnesses examined before him as a preliminary to the trial. But now the witnesses are only three in number and the matters about which it is desired that they be examined are not extensive. I can see no reason why the judge before whom the defendant is presented should not, if he or she sees fit, allow the three witnesses to be cross-examined on behalf of the defendant by way of what has become known in New South Wales as a "Basha" inquiry. ... Where notice of additional evidence has been given, it is not uncommon in this State for the judge to permit cross-examination in this way."

133. The Crown has indicated that it has no objection to that procedure being followed in this prosecution prior to the commencement of the trial. It should be pointed out that Basha inquiries are not as of right. They are only appropriate where to deny the accused the opportunity would result in an unfair trial. It is observed that they usually only take place where notice of additional evidence is given after committal. I would not confine the procedure to additional evidence because it is grounded on overcoming a possibility of an unfair trial but it would be only in special circumstances that an inquiry would take place in the absence of additional evidence. The test must always be - would the trial be unfair if a Basha inquiry did not occur?[25]

136. The Crown has made it quite clear that it has no objection to a Basha inquiry taking place in respect of any important witness where it is established to the satisfaction of the Court that it is necessary in the interests of justice for such an inquiry to take place. On present indications, it would appear that if a Basha inquiry was permitted prior to trial in this Court, a substantial number of witnesses would be involved and as stated earlier in these reasons, it could take up four weeks of sitting time. I have difficulty accepting that it is in the interests of the community for a Judge of this Court to take up to one month hearing cross-examination of a number of witnesses. Delay and expense are matters that are relevant to the interests of the community as Barton v R demonstrates, and it must follow that the time and expense involved in a Basha inquiry in the Supreme Court are matters that are relevant to the interests of the community and which count against a direct presentment. A Basha inquiry is not a committal. It should not be used as a substitute for a committal. It would only be in a rare case where the exigencies of the circumstances could ever justify a Basha inquiry taking the place of a committal.

139. At the outset it is necessary to identify the interests of the Crown acting on behalf of the community and the interests of the accused which must be the subject of the balancing process.

142. The only murder case in this State the subject of a direct presentment without a committal proceeding was the prosecution of eight police officers who were charged with the murder of a man called Jensen.[26] However, in that case there had been a long coronial inquiry and the accused persons were given the opportunity at that inquiry to be heard. Other than that case, it is believed that no other charge of murder in this State has been the subject of making a presentment directly without a committal proceeding. Accordingly the approach taken by the Director in the present case is something that has not occurred in this State before and to permit it would be making history. I am not discouraged by the uniqueness of the present proceeding. However, the fact that it has not been done before in what is the second most serious crime in the criminal calendar after treason, means that the Court must proceed with caution.

145. Mr Heliotis submitted that Mr Williams would be deprived of a number of rights he could exercise at a committal hearing and would be prejudiced thereby. He listed them -

(i) A Magistrate has the power to discharge Mr Williams if the evidence is insufficient to support a conviction;

(ii) he would lose the right to costs upon discharge;

(iii) he would be deprived of the knowledge of what Crown witnesses would say on oath;

(iv) he would be denied the opportunity to cross-examine the witnesses;

(v) he would lose the opportunity to have the benefit of any new information obtained and/or disclosed during the committal proceeding.

151. It is not correct to say that he would be deprived of the knowledge of what the Crown witnesses would say on oath because under the new procedures, all written statements are on oath. Further, on any view if the presentment is to proceed in this Court without the preliminary hearing, he would be given the opportunity to cross-examine any witness which justice required. In other words the Basha inquiry could overcome that problem. This would also overcome any concern about missing out on any new information that may be disclosed on cross-examination.

154. It is necessary to analyse these detriments in the context of the evidence against Mr Williams. The principal source of evidence against Mr Williams is the evidence of Mr X in the two statements made this year. Not surprisingly, counsel for Mr Williams wishes to cross-examine Mr X in respect to these statements and it is anticipated this would take some days. Mr X has a criminal history involving crimes of dishonesty. It was submitted with some substance that he has a motive to give evidence against the accused because it is a factor of weight in sentencing him for the murder of Mr Marshall. I have no doubt that if the presentment was to proceed, the Court would have to grant a Basha inquiry in relation to his evidence. Mr Heliotis wishes to have the opportunity to cross-examine Mr X in an endeavour to discredit him and also to show that his evidence is untrue. He submitted that this right to cross-examine with the prospect of persuading a Magistrate to discharge Mr Williams with an order for costs is a substantial right that Mr Williams should not be denied. On the material that I have considered, it is clear that the Crown case rests heavily upon the evidence of Mr X against Mr Williams.

157. Mr Grant makes the same submission. However, in addition he wishes to cross-examine a considerable number of other witnesses. He joins with Mr Heliotis in the submission that his client should not be deprived of the opportunities of discrediting the Crown case, and the opportunity of making a submission that his client should be discharged and seek costs. He submitted that a Basha inquiry could not achieve those ends, and further that the Basha inquiry, because of the number of witnesses, would take a substantial period of time. The evidence against Mr Brincat also rests substantially on the statements of Mr X. Ms Gobbo makes the same points and emphasises that the evidence against Mr Traglia is also resting substantially on the statements of Mr X. She makes the further point that the evidence involving Mr Traglia's alleged involvement in the murders of Messrs Moran and Barbaro is vague and lacks certainty. She also makes the point that Mr Traglia is not charged with the murder of Mr Marshall and there is no evidence to suggest he is in any way connected with it but more importantly, because it seems to be common ground that Mr Barbaro was not the subject of any killing arrangement, the evidence involving Mr Traglia in respect to the killing of Mr Barbaro is non-existent. This latter point is of substance on the material I have considered.

160. The deprivation of the rights of each accused in the circumstances is detrimental and of substance. The denial of a committal hearing does put the accused at a disadvantage.

163. It is now necessary to identify the interests of the Crown acting on behalf of the community. The principal contention of the Crown is that the trial against the three accused should be heard as soon as possible. In considering this contention, it is necessary to repeat what I said earlier, namely, that the prospects are reasonably good that if a committal is to take place, it could be completed by the beginning of July and a trial could take place commencing in the latter part of July. The reason why the trial should be heard as soon as possible, according to the Crown, is that the principal witness against the three accused is Mr X. He is at present being held in protective custody pursuant to the Witness Protection Act 1991. There is a concern that an attempt may be made on his life to prevent him giving evidence. The point is then made that the sooner the trial is heard the less time he is exposed to that danger. There is a concern that each time he has to appear in Court the greater the personal risk he faces. It is said that it is inevitable that his present residence will become known. This is put even if a remote facility is used. It is submitted that his appearances should be reduced to the minimum number as far as possible. It is said that a protracted committal should be avoided. Further, it is submitted that the interests of justice demand that the murder trials be resolved as quickly as possible because they have created unprecedented public interest. Finally, it is said that the longer it takes for the trial to come on the longer time there is for interested parties to influence the results via the media.

166. It is necessary to analyse each of these reasons put forward by the Crown. It is correct that the main evidence against Messrs Williams and Traglia and to a lesser extent Mr Brincat is found in the evidence to be given by Mr X. It is also correct that he is in protective custody but one would expect that steps would be taken to ensure that his whereabouts are unknown and, if necessary, to move him from time to time. It is said in that context that the less time there is between now and the trial, the less is his exposure to danger. However, realistically, whether there be a committal or not, the trial date is likely to be somewhere in the middle of next year.

169. In addition, it is accepted by counsel on behalf of each accused that Mr X can give his evidence by audio visual link at the committal which would dispense with the requirement of him attending at the court. The number of appearances of Mr X will be the same whether there is a committal or no committal. If there is no committal, there must be a Basha inquiry - the Crown accepts this - and it would be necessary for Mr X to attend on the Basha inquiry. He would then have to give evidence at the trial. This would require two attendances. The same will occur if he has to give evidence at a committal. Further, on what I have been told, it would appear that there will not be a protracted committal even though there are a very large number of witnesses who have given statements in respect to the murders. A committal would take the same time as a Basha inquiry.

172. I do accept that it is in the interests of justice that murder trials be resolved as quickly as possible; that observation applies to all murder cases and just not the present proceeding. I can take judicial notice that these murder cases have created considerable public interest, but I would not go as far as saying unprecedented public interest. However, in my view, a committal will not unduly prolong the trial date in this Court. I have difficulty with the point made about trying to influence the result via the media. I can take judicial notice that from time to time the media talks to the relatives of accused persons seeking to put a slant in some way or other but I agree with the submission made on behalf of the applicants, that if there is any real risk of the media seeking to influence the outcome of the trial, contempt proceedings could be taken. However, I would have thought, bearing in mind the amount of publicity that this application has received, that the media is very aware of its responsibilities in this regard.

175. It is now necessary to consider the interests of both the accused and the Crown and to determine where the balance of justice lies. As I have said, the accused have the burden of persuading this Court to grant a stay. History is on their side. It has always been the practice to hold a committal. It is rare not to do so[27]. Committal proceedings have always played an important part in the administration of the criminal law, affording a protection to the accused which of course includes the right to make a submission that an accused person should be discharged because the evidence is not sufficient. In addition, there are other benefits of having a committal[28]. The loss of these benefits would prejudice the accused, and this provides cogent evidence in favour of a stay being granted.

178. It seems to me on a proper evaluation of the interests of all parties that if a committal proceeding takes place it will not delay the expected trial date which is mid 2005. I do not accept that in this proceeding a Basha inquiry should take the place of a committal.

181. The time and expense involved is not justified in the interests of the community. A procedure already exists and should be used. This will be less expensive than holding a lengthy inquiry in this Court.

184. If a committal is to take place it will take place in the first six months of next year, it will take about four weeks, and on present indications the trial could take place commencing in mid July next year. If a committal does not take place and a Basha inquiry occurs, it would be expected that the Basha inquiry would be some time in May/June, with a period which I think is probably reasonable in the circumstances of a few weeks before the trial commences. This is to enable defence counsel to properly consider the effect of the evidence adduced at the Basha inquiry. As there is the mid year vacation, it would be expected that in those circumstances the trial would commence in mid July. This would be the same whether there is or is not a committal. Further, whether there be a committal or a Basha inquiry, the number of attendances by Mr X would be the same.

187. When analysed, the interests of the accused outweigh the interests of the Crown representing the community. I do not accept that the reasons advanced by the Crown are sufficiently compelling to overcome the deprivation of the advantages accorded to the accused by the committal hearing. They do not compel a departure from the usual practice which provides protection to the accused in the criminal process. I am persuaded by the accused applicants that they are entitled to a grant of a stay pending the hearing and completion of a committal proceeding or further order.

190. Subject to any submissions by counsel I am prepared to make an order that the proceeding instituted by the filing of a presentment on 30 August 2004 in this Court against Carl Williams, Victor Brincat and Alfonso Traglia be stayed pending the hearing and conclusion of a committal proceeding or further order.

[1] He is a participant in the Victorian witness protection program under the Witness Protection Act 1991 and at this time it is inappropriate to reveal his identity.

[2] See s.56(1) of the Magistrates' Court Act 1989.

[3] [1989] HCA 45; (1989) 168 CLR 1 at 11 et seq.

[4] at p 15. See also Wilson J in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 112.

[6] See Regina v Martin [1884] VicLawRp 117; (1884) 10 VLR(L) 343 and Regina v Cameron and Cracknell (1896) 22 VLR 481.

[9] See s.22(2).

[10] See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.

[11] At p 95. (Aickin J agreed with their reasons).

[15] See Gibbs ACJ and Mason J, supra at p 101.

[17] See observations of Stephen J at p.105 and Wilson J at p 114.

[20] See also Brooks v DPP [1994] 1 AC 568 at 581.

[21] See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, Gibbs ACJ and Mason J at pp 99-100, Stephen J at p 105 and Wilson J at p 114.

[23] [1998] 1 VR 312 at 316 - 7.

[25] See R v Sandford (1994) 33 NSWLR 172 at 181 per Hunt CJ at CL.

[26] See R v Smith & Ors [1995] VicRp 2; [1995] 1 VR 10.

[27] See Barton v The Queen at pp 100-1 per Gibbs ACJ and Mason J.

[28] See Barton v The Queen at p 99 per Gibbs ACJ and Mason J; at pp 105-6 per Stephen J.