R v Greenfield [2023] NSWSC 1386

Supreme Court New South Wales

Medium Neutral Citation: R v Greenfield [2023] NSWSC 1386 Hearing dates: 14 November 2023 Date of orders: 15 November 2023 Decision date: 15 November 2023 Jurisdiction: Common Law Before: Wilson J Decision: 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 Legislation Cited: Coroners Act 2009 (NSW) Crimes Act 2009 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: HO v R [2023] NSWCCA 245 R v Basha (1989) 39 A Crim R 337 R v Kennedy (1997) 94 A Crim R 341 R v Sandford (1994) 33 NSWLR 172 R v Xie (No. 11) [2014] NSWSC 1977 Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 Category: Procedural rulings Parties: Rex (Crown) Stephen Greenfield (Accused) Representation: Counsel: G Tabuteau (Crown) I Nash (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) AA Criminal Lawyers (Accused) File Number(s): 2020/326217 Publication restriction: Previously restricted to parties pending verdict or other order of the Court.

JUDGMENT 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. 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. Shayne Miller 2. Zac Forbes (or Nancarrow) 3. Nicole Fawns 4. Brett Lucas 5. Simon Hearne 6. Glen Merz, and 7. Link Frame. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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.