Aydin v The Queen

[2010] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0181
HALIL AYDIN	Applicant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, REDLICH and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 July 2010
DATE OF ORDERS	13 July 2010
DATE OF REASONS FOR JUDGMENT	29 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 190
JUDGMENT APPEALED FROM	R v Aydin (Unreported, County Court of Victoria, Judge Thornton, 8 June 2010)

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CRIMINAL LAW – Interlocutory appeal – Application for grant of a permanent stay refused by trial judge – Whether this is an exceptional case – Cold case – Almost 28 years between offence and trial – Alleged fingerprint evidence linking applicant to offence – Destruction of police file – No bad faith or abuse of process or attempt to obstruct the course of justice – Whether trial judge, in exercising her discretion, gave sufficient weight to any forensic disadvantage to the applicant – Criminal Procedure Act 2009, s 295.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Robert Stary Lawyers
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Harper JA that the applicant should be granted leave to appeal but the appeal should be dismissed.

1. It is, I think, unfortunate that the police file was destroyed in a case in which a photograph of a fingerprint was retained, presumably in the hope or expectation that it could be matched at some future date.  When material,[1] which can lead to the identification of an offender if further material comes to light, is retained, it might be thought that other evidence and material in the possession of the prosecuting authorities, which would then become relevant, should also be retained. 

   [1]For example, DNA material.

REDLICH JA:

1. I agree with Harper JA that the applicant has not demonstrated that the destruction of the police file constituted an abuse of process that rendered the trial unfair.  A permanent stay would only be warranted if it were shown that a conviction of the applicant would be attended by a real risk of miscarriage.

1. The destruction of the police file was not undertaken in bad faith or in wilful disregard of the right of an accused person to full disclosure of all material evidence.  That said, I endorse the view expressed by Buchanan JA that it is unsatisfactory that forensic evidence such as finger prints or DNA is retained so that where the offender is later identified, a prosecution may commence, yet the balance of the file is destroyed.  The policies implemented by Victoria Police should be designed to achieve the same ends.

1. As Harper JA shows, the applicant was unable to identify any specific prejudice flowing from the implementation of the police policy which required the investigative file to be destroyed after twenty years.  It was accepted during the course of argument that it was highly unlikely that the complainant would have

provided a detailed description of her assailant…