There’s been a longstanding procedure in respect of Queensland District and Supreme Court trials for the defence to cross-examine particular witnesses before trial starts. This is known as a Basha hearing, named after a New South Wales case.
In early December 2015 the use of the Basha hearing was approved by a Supreme Court judge to allow the Prosecution to ask questions of a witness who is unwilling to give evidence for the Prosecution.
In that case the person concerned provided a record of interview to Police but refused to provide a statement and his lawyer indicated to the prosecution that he would not give evidence for the prosecution on a trial against his co-accused.
The witness when called on the Basha hearing refused to answer questions and he was charged with contempt.
The witness’ lawyer argued that the prosecution should not be able to use a Basha hearing to ascertain what evidence the witness would give at the trial. However Justice Mullins found that there was no impediment to the prosecution using the Basha hearing process for the purpose of ascertaining whether or not he would refuse to give evidence if called at the trial.
Justice Mullins found that “the criminal justice system, however, has to be preserved in the sense that it depends on witnesses who have relevant knowledge of criminal offending giving evidence when called to do so”.
In respect of this witness Justice Mullins sentenced him to six months’ imprisonment for contempt for his refusal to answer questions on the Basha hearing.