Duncan v Crews

[2001] NSWSC 376

Reported Decision: (2001) 161 FLR 250
[2001] NSWSC 376
[2001] ACL Rep 130 NSW 159

New South Wales

Supreme Court

CITATION:	DUNCAN v. CREWS; STANLEY v. FARLOW [2001] NSWSC 376
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC No. 11071 of 2000; No. 11804 of 2000
HEARING DATE(S):	15 November 2000
JUDGMENT DATE:	10 May 2001
PARTIES :	DUNCAN, Caroline v. CREWS, Sharon & ANOR; STANLEY, Melva Elizabeth v. FARLOW, Denise Lesley
JUDGMENT OF:	Greg James J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	N/A
LOWER COURT JUDICIAL OFFICER :	S. Crews; M. Beveridge

COUNSEL :	Duncan/Farlow: D. Bugg, QC./R. Bromwich Crews/Stanley: J. Andrews
SOLICITORS:	Duncan/Farlow: Commonwealth Director of Public Prosecutions Crews: I.V. Knight (submitting appearance) Stanley/Pile: D. Humphreys
CATCHWORDS:	Criminal law - summary prosecutions - destroyed evidence - power to stay proceedings - necessary criteria for exercise of power - applicability in New South Wales of decision in Commonwealth Service Delivery Agency v. Bourke - availability of remedies other than stay - availability of acquittal - Bourke not decisive in New South Wales of when a stay should be granted.
LEGISLATION CITED:	Justice Act 1902 Social Security Act 1991 Crimes Act (Cth) 1914 Evidence Act 1995 Archives Act 1983
CASES CITED:	Commonwealth Service Delivery Agency v. Bourke (Wicks, J., unreported 16 April 1999) Williams v. Spautz (1992) 174 CLR 509 Walton v. Gardiner (1993) 177 CLR 378 Jago v. District Court of New South Wales (1989) 168 CLR 23 Holmden v. Bitar (1987) 47 SASR 509 Crawford v. Bickar (1987) 75 ALR 522 Heinze v. Burnley (1992) 57 SASR 452 Adler (CCA, unreported 11 June 1992) Goldburg (CCA, unreported 23 February 2993) Tolmie (CCA, unreported 7 December 1994) Davis (1995) 81 A. Crim. R. 156 Reeves (1994) 122 ACTR 1 May v. O'Sullivan (1955) 92 CLR 654 Barton (1980) 147 CLR 75
DECISION:	Duncan v. Crews: Magistrate erred; Stanley v. Farlow: Magistrate did not err

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 11071 of 2000
No. 11804 of 2000

GREG JAMES, J.

THURSDAY 10 MAY 2001

CAROLINE DUNCAN v. SHARON CREWS & ANOR
MELVA ELIZABETH STANLEY v. DENISE LESLEY FARLOW

JUDGMENT

1   HIS HONOUR: These two matters were ordered to be heard together by Newman, J. on 24 July 2000 because the matters involve similar factual backgrounds and the same question of law.

2 Each matter is an application to the Supreme Court by summons under Part 5 of the Justices Act 1902 seeking to review a decision in each case of a magistrate: in the one case, Duncan v. Crews & Anor, staying a summary prosecution; and in the other, Stanley v. Farlow, declining to stay a summary prosecution.

The alleged offences

3 In each case, there had been, in the Local Court, a summary prosecution on numerous counts for offences by way of contravention of s.1347 of the Social Security Act 1991 which provides:-

"A person must not knowingly obtain:-
(a) payment of a social security payment under this Act or of fares allowance; or
(b) payment of an instalment of a social security payment under this Act;
for which the person is not eligible, or which is:-
(c) not payable at all; or
(d) only payable in part."

4   Such contraventions, if proved, amount to offences under s.1350 of that Act which may be prosecuted summarily and carry a maximum penalty of 12 months imprisonment or a fine not exceeding $6,600 (pursuant to s.4B(2) of the Crimes Act (Cth)1914).

Background

5   In both matters, it is alleged that the defendants before the magistrate either did not declare income or understated income. All the prosecutions relate to the requirements for receipt of Job Search/Newstart Allowances. Persons seeking such allowances are required to complete each fortnight a Fortnightly Continuation Form. That form is required to have entered on it by the applicant details of any income received during that period. The allowance, if any, otherwise payable is reduced, having regard to the amount earned during that period.

The proceedings before the magistrates

6   In both cases, it is accepted that various Fortnightly Continuation Forms containing information as to income during a relevant period, were either lost or destroyed by Centrelink, the lodging authority.

7   In both cases, the prosecution is attempting to rely on a computer generated record "Earnings from Employment" which purports to be a computer generated record of the amounts of income notified to Centrelink by lodgment of the Fortnightly Continuation Form and transferred to that record from that form.

8 Both applications for a permanent stay of the proceedings were based on the fact that Centrelink could not produce the relevant Fortnightly Continuation Form completed by the applicant to substantiate the figures shown in the computer generated document, those forms having been destroyed. It was common ground that there was an entitlement under the Archives Act 1983 for Centrelink to destroy the forms.

9   In Duncan v. Crews & Anor, Centrelink was not able to produce in relation to the eight counts, four forms going to four of the charges.

10   In Stanley v. Farlow, Centrelink was unable to produce in relation to the five counts before the magistrate any Fortnightly Continuation Forms in relation to counts one, two and four and only parts of those forms as might relate to counts three and five.

11   In each case, it was sought to tender the evidence of the earnings from the employment computer generated document as a business record of the prosecution rather than as simply secondary evidence of the forms that had been lodged by the defendant, although the content of the forms was said to be able to be inferred from that of other forms.

12 No tendency evidence notices were given as required by the Evidence Act 1995, if the evidence was to be used for that purpose, and the matters were dealt with as the transcript in each matters shows on the basis of submissions put from the bar table.

13   Objection was taken to the tender of the computer forms in the matter of Duncan v. Crews & Anor but not in the matter of Stanley v. Farlow.

14   In Duncan v. Crews & Anor, the defence asserted was an honest and reasonable mistake of fact, alternatively that the answer to one question on the forms turned on an interpretation of that question in the defendant's favour. The defence successfully moved for the stay prior to the commencement of the prosecution case. In that matter, the prosecutor agreed:-

"A great majority of the forms have been destroyed and are unavailable. It is not disputed again that a check was made between the forms that are available with the computer data information to verify how correct that computer data was and on two occasions the computer data was incorrect."

15   There was available systems evidence to show that the information submitted by the defendant was intended to be accurately transformed onto the computer forms but there was an admission that human error was possible.

16   The court was informed from the bar table that the plaintiff could not recall what she had written on the forms three years earlier and the absence of the original forms meant that there would be no evidence of what she did in fact write on the forms. It was contended that the unavailability of the forms in those circumstances in each case deprived the defendant in each case of the opportunity of a fair trial.

17   The magistrate having stayed the proceedings, the Director of Public Prosecutions for the Commonwealth seeks that that order be quashed. In Stanley v. Farlow, the stay is sought that the magistrate declined to order.

18   In both matters, reliance was placed by the defendants before the magistrate on the decision of Wicks, J. of the Supreme Court of South Australia in Commonwealth Service Delivery Agency v. Bourke (unreported 16 April 1999). Before me the defendants submit that decision should be followed. The Director of Public Prosecutions submits that decision is wrong and should not be followed.

The decisions of the magistrates

19   In the matter of Stanley v. Farlow, the magistrate delivered an extensive judgment. Relevantly, he concluded that the matters to which the defendant had pointed as the matters going to whether she could have a fair trial are the very matters which would effect the fulfilment by the prosecutor of the necessary burden of proof beyond reasonable doubt. He concluded that if the defendant gave evidence to the effect that she had no intention of obtaining something she wasn't meant to, even if she couldn't remember what it was she had said in the forms, then the tribunal of fact when fairly conducting the trial would have to take into account when assessing her defence that she had no means of showing what she had actually put on her form. He said:-

"But she might well have filled in the forms in such a way as to show that, even if they weren't filled in as they should have been, that they were certainly not filled in so as to trick her way into something she wasn't entitled to".

20   The magistrate proceeded, so it was submitted by the defendant before me, to hear the application on the basis that the plaintiff's contention was that she did not put false information to Centrelink.

21   On that basis, the magistrate ultimately determined that he could adequately direct himself as to the absence of forms and refused the application to stay the proceedings.

22   It was submitted that the magistrate concluded he must proceed on the basis that the plaintiff was not acting so as to obtain something she was not entitled to and thus he could never be satisfied beyond reasonable doubt. In those circumstances, it was contended the magistrate should have stayed the proceedings because the matter was doomed to failure.

23   Such a submission is over-simplistic. The offence is an offence of knowingly obtaining payment of an allowance at an amount not payable. The magistrate's remarks do not require him at the point in the hearing the matter had reached to have concluded that he must acquit the defendant without hearing further even though it might have been open to him to take that course.

24   The proceedings were adjourned to enable the testing of the magistrate's decision on the stay application at the close of the prosecution case.

25   In the matter of Duncan v. Crews & Anor, the application to stay the proceedings was made during the prosecution case and subsequently renewed at the close of evidence in the prosecution case.

26   An application by the prosecution to amend in consequence of the fact that the periods which had been covered by two of the charges included periods to which two of the missing forms related, was declined on the basis that it was too late in the proceedings and that the prosecution had had sufficient notice by reason of the cross-examination.

27   The learned magistrate held that it was necessary for her to consider each of the counts separately, although the proceedings were being heard together and that the loss of forms relevant to particular counts created such prejudice as to be unable to say whether the relevant information was entered in the computer correctly. She referred to a prosecution submission that all the other forms were correct and that therefore these had to be correct and rather than consider that in the light of principles relating to the admissibility of tendency or similar fact evidence, referred to Bourke's case as persuasive on the issue that she should stay the proceedings.

28   Just as the magistrate in Stanley v. Farlow had noted the possibility of an acquittal on the basis that the prosecution had failed to prove the matters to which the missing forms related beyond reasonable doubt, the magistrate in Duncan v. Crews & Anor referred to her having anticipated that there might be some application that she should acquit on the basis that the evidence, although sufficient to make out the offence, was not such as to satisfy her. She then delivered a short judgment in respect of the four counts in the information on which the forms had been misplaced or destroyed, holding that the unfairness generated to the defendant by the loss of the forms was sufficient for her to conclude that a stay should be granted.

Materials provided on appeal

29   In each case, on the matter coming forward for hearing before me, I was provided with a chronology, statement of grounds, and affidavits in support setting out what had occurred before each learned magistrate together with extensive written submissions. All of these were received without objection and to all of that material I have had regard.

30   In each case, the learned magistrate filed a submitting appearance.

31   In each case, I have been provided with the evidence including the evidence by way of recorded interview taken by officers of the Department with the defendants and my attention drawn to the accepted conduct of the matter below which, in each case, although charging individual offences, relied upon a course of conduct on the part of the defendant so as to show the deliberate omission or understatement of income as applicable to individual counts.

The questions

32   Before me, the parties contented themselves with seeking a determination of the legal question involved in each case in the light of the decision in Bourke (supra) and, having considered their position, were of the view that depending upon the result it might be necessary for them to make further submissions should the matters be returned to the magistrates in the further conduct of the matters in the Local Court, particularly concerning what evidence might be admissible on each count.

33 During the argument, I drew to the parties' attention that the proceedings had been instituted under s.105 of the Justices Act 1902 which had been repealed and that s.104 of that Act now provide for the relevant appeal in each case. That section reads as follows:-

"(1) A person against whom any conviction or order was made, or sentence was imposed, by a magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds:-
(a) a ground that involves a question of law alone,
(b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court,
(c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.
This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order.
(2) An informant may appeal under this Division to the Supreme Court against the following, on a ground that involves a question of law alone:-
(a) an order made by a magistrate that stays summary proceedings for the prosecution of an offence,
(b) an order made by a magistrate in summary proceedings dismissing an information or complaint,
(c) an order for costs made by a magistrate in summary proceedings,
(d) a sentence imposed by a magistrate in summary proceedings.
(3) A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.
(4) A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.
(5) A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by s.69 of that Act."

34   It is plain that for the matters to proceed to an effective determination of the essential common question, it was necessary to state the question of law applicable.

35   It became apparent during the argument of the matter before me, that although the parties had sought that the matter proceed on the basis of a common question of law, applying Bourke (supra), the form of the question had not been precisely articulated. Whatever be the form of the question, it is clear that it involves a common question of law turning on the correctness of the applicability of the decision in Bourke (supra). A question of leave however arose.

36 It was submitted that the order refusing the stay was an interlocutory order which required leave under s.104(4) of the Justices Act 1902.

37   In Stanley v. Farlow, no such submission has been made as was made in respect of the order of the magistrate in Duncan v. Crews & Anor staying the proceedings. Nonetheless, the proceedings have before me continued on the basis that leave, so far as is necessary to argue the common question of law, is conceded by the Director of Public Prosecutions.

38   Since the matter to be determined is a question of general importance, so far as is necessary, I grant leave.

39   The matter was stood over to enable the parties to articulate such a question as might be applicable to the two proceedings. In due course I was advised that the parties had agreed on questions. I set out those questions and the accompanying qualifications:-

Duncan v. Crews & Anor
"Question 1 Is the decision of Wicks, J. in Commonwealth Service Delivery Agency v. Bourke (South Australian Supreme Court, unreported 16 April 1999), in relation to the granting of a stay, on the facts and circumstances of that case, good law in New South Wales?
Question 2 If the answer to question one was 'yes', was the decision of the learned magistrate to permanently stay proceedings in respect of counts one, five, seven and eight of the information in these proceedings correct?
Question 3 If the answer to question one was 'no', was the decision of the learned magistrate to permanently stay proceedings in respect of counts 1, five, seven and eight of the information in these proceedings correct?
Question 4 Did the learned magistrate err in law in holding, on the evidence available to her, that the destruction of the four forms caused a prejudice to the second respondent which was incapable of remedy in the proceedings before her?
Question 5 If there was prejudice caused to the second respondent, was that prejudice capable of remedy, and if so, what was the appropriate remedy?"


Stanley v. Farlow
"In this matter, a divergence of views concerning the jurisdiction of the Supreme Court prevents any agreement by the parties on the questions to be asked.
The plaintiff contends that there is no barrier in the way of jurisdiction or proper function and no proper reason to decline to answer the following questions, which are similar to the agreed questions as posed in Duncan v. Crews.
Question 1 Is the decision of Wicks, J. in Commonwealth Services Delivery Agency v. Bourke (South Australian Supreme Court, unreported 16 April 1999), in relation to the granting of a stay, on the facts and circumstances of that case, good law in New South Wales?
Question 2 If the answer to question one was 'yes', was the decision of the learned magistrate to refuse to permanently stay proceedings in respect of counts one to five of the information in these proceedings correct?
Question 3 If the answer to question one was 'no', was the decision of the learned magistrate to refuse to permanently stay proceedings in respect of counts one to five of the information in these proceedings correct?
Question 4 Did the learned magistrate err in law in holding on the evidence available to him that the destruction of the forms and the errors in the date entry were capable of remedy by appropriate directions of law?

Question 5 If there was prejudice caused to the plaintiff, was that prejudice capable of remedy, and if so, what was the appropriate remedy?
The defendant is of the view that given the nature of the appeal in this matter, questions of the kind posed in the Duncan v. Crews matter cannot be applied to the Stanley v. Farlow matter and answered by the court.
This is because the jurisdiction and/or proper function of this honourable court on a review brought under Part 5 of the Justices Act 1902, is confined to the question of whether or not, as a matter of law, the learned magistrate was entitled to decline to exercise his discretion to grant a permanent stay of proceedings on the material that was before him taking into account the principles applicable to answering questions one to five in the Pile matter. Alternatively , the defendant contends that, as a matter of discretion, this honourable court ought to decline to intervene at this stage in the Local Court proceedings, leaving the matter for the usual avenues of appeal in the event of a conviction or such other proper grounds of review as may emerge as the Local Court hearing progresses." (emphasis added)

40   As is apparent, agreement did not extend to the consequences of questions one to five being answered in certain circumstances in the matter of Stanley v. Farlow. For the Commonwealth Director of Public Prosecutions, the ultimate submission in that matter turned upon a submission that it is discretionary in a court to stay proceedings permanently in the event of a fair trial being unable to be had.

41   Subsequent to the originally submitted questions being received, it was agreed that the contentions originally advanced might be amended so that the first sentence in the second paragraph of the qualification to the questions would now be amended to include the words emphasised above:-

42   In my view, the questions as posed inappositely state the common question of law to the two proceedings the parties seek that I decide. A number of months now have been devoted to the parties attempting to agree upon the formulation. I do not see it necessary to delay longer. In each case, question two of the questions raised sufficiently the correctness of the decision of the learned magistrate in one case to stay proceedings and in the other to refuse to stay proceedings.

43   The question as to the correctness in each case of the magistrate's decision may be adequately stated by reference to the decision in Bourke (supra) in each case by adding to the question as expressed as question two, was the decision of the learned magistrate to refuse or to grant a permanent stay of the proceedings in reliance on the decision in Bourke (supra), correct?

44   As to question one, it will sufficiently appear from these reasons of the view I take of the applicability of the decision in Bourke (supra) in New South Wales.

45   In each case, question three, four and five are matters preliminary to the determination of the correctness of a magistrate's decision. The contention that as a matter of discretion, notwithstanding the way in which the matter was conducted before me as though the question was appropriate for leave and the issue was fairly joined between the parties, I should decline to intervene at this stage, is one that I reject, having regard to the way in which the parties conducted the proceedings.

46   Before turning to an examination of the parties' submissions and the case law, I note that it was common ground between all parties that no orders for costs were sought in either proceedings in any event.

The legal test

47 The resolution of the question involved in these proceedings does not require examination of whether the proceedings are being brought for an improper purpose or ulterior to the purpose for which they were intended (see Williams v. Spautz (1992) 174 CLR 509; Walton v. Gardiner (1993) 177 CLR 378) (which latter case also deals with the continuation of proceedings doomed to failure).

48 In Jago v. District Court of New South Wales (1989) 168 CLR 23 at 34, it was said that the power to stay only arises in the event of a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

49 Although there have been prosecutions stayed by reason of abuse of process for unfairness where the evidence has been destroyed including Holmden v. Bitar (1987) 47 SASR 509; Crawford v. Bickar (1987) 75 ALR 522; and Heinze v. Burnley (1992) 57 SASR 452, the mere absence of evidence that has become unavailable otherwise than by the fault of the defendant is not itself generally sufficient to justify a stay of proceedings: Regina v. Adler (CCA, unreported 11 June 1992); Regina v. Goldburg (CCA, unreported 23 February 1993); Regina v. Tolmie (CCA, unreported 7 December 1994). It is of fundamental importance to the processes of justice that courts should exercise their jurisdiction: Spautz (supra) at 519; Jago (supra) at 47. The absence of important evidence which might have assisted the Crown will usually leave a defect in the Crown case which, if not repairable, may result in a reasonable doubt and acquittal. The absence of evidence which might have assisted the defence requires evaluation of the importance of that evidence to enabling the defence to have a fair trial.

50 On the authorities, before a stay will be granted it is necessary that the proceedings be seen as having to miscarry, notwithstanding the extensive powers available to a trial judge or a magistrate in New South Wales and in Commonwealth matters to ensure the proceedings are fair, eg., under the Evidence Act 1995 to reject evidence, and to give appropriate directions as to how evidence should be treated; to draw inferences and to consider the importance of the facts in issue and the absent evidence in the light of the burden of proof and the importance, in that context, of the absent evidence.

51 The ultimate issue is whether the proceedings can no longer serve the purpose for which the statute, in this case the Justices Act 1902, was provided, that is, whether the magistrate will be able to hear and determine the proceedings by a fair trial. If not, it will be one of those exceptional cases in which a stay should be granted. Otherwise, the trial should proceed unless doomed to failure: Walton v. Gardiner (supra).

52 Although both parties cited extensive authority referring to such decisions as Regina v. Davis (1995) 81 A. Crim. R. 156 and Regina v. Reeves (1994) 122 ACTR 1 as to the effect on proceedings of unavailable documentation, it is plain that in each case the nature of the proceedings and the nature of the documentation will require that each case be determined on its own merits by the weighing process I have referred to and the balancing process referred to in Jago (supra).

53 The absence of the documentation needs to be considered in the context of the available powers under the Evidence Act 1995 in particular to reject evidence tendered for the purpose of attempting to establish the matter to which that documentation might go or to reject the tender of secondary or tendency evidence and in the context that a prosecuting party in the absence of the evidence may not be able to rebut a reasonable doubt on matters genuinely in issue.

Review of the magistrate's decision

54   Both parties accepted I had power to stay the proceedings a magistrate has wrongly refused to stay or to order a magistrate to continue proceedings wrongly stayed and I should examine all powers a magistrate might exercise to see the basis for the decision below and to decide on its correctness.

55   Such a decision by me would be, however, not in the exercise of a discretion but one compelled by a conclusion of error below, eg., incorrect findings, just as the magistrate's initial decision should be one to which the magistrate is compelled by findings that the statutory duty cannot, in the particular circumstances, be performed rather than being based on some notion of a discretion not to hear a case based on less than satisfactory evidence.

56   One of the powers the magistrate has, as a tribunal of fact, is to acquit and to do so in an appropriate case at the close of the Crown case. Such a course may be taken as a consequence of rejecting evidence including on discretionary grounds.

57 It will be apparent from this discussion the degree of importance I place upon it being open to the magistrate to be able to acquit in accordance with the second branch of the rule in May v. O'Sullivan (1955) 92 CLR 654 even though there might be a sufficiency of evidence to support a conviction. In this case it is apparent both magistrates turned their mind to that matter, in each case envisaging that that might well be the course each might, in due course, take. Entering an acquittal would be the more appropriate course than ordering a stay if the magistrate is left with reasonable doubt as to an essential matter, eg., what were the relevant contents of the forms. The evidence of the defendant at the trial may or may not be able to resolve the issue but if it cannot resolve the doubt in favour of the prosecution there should be an acquittal rather than a stay. Indeed, if it is appropriate to acquit, to order a stay would be a fundamental error. The magistrate in Stanley v. Farlow appears to have so reasoned but the magistrate in Stanley v. Crews does not appear to have considered this matter this way relaying on Bourke (supra).

The decision in Bourke

58 I turn to the decision in Bourke (supra). In that matter, Wicks, J. drew attention to the offences having been detected by means of a date comparison with that provided to the Australian Taxation Office from that provided in the Department of Social Security (Centrelink) records. In that matter, as in these, the original forms had been destroyed in accordance with the Archives Act 1983. The application was made prior to evidence being called for the prosecution and upheld by the magistrate. The proceedings before his Honour were an appeal by the Commonwealth Services Delivery Agency against the order the magistrate made permanently staying the proceedings on the ground that they constituted and abuse of process.

59   His Honour referred to the mass of authority now in this field of jurisprudence concerning the grant of stays and to the magistrate having undertaken the balancing process of weighing the two competing public interests, that is, the right of the accused to a fair trial, and the need to punish people who break the law, in accordance with that as described in Walton v. Gardiner (supra).

60   His Honour stated the question before him thus:-

"The question, therefore, is whether this was one of those rare and exceptional cases where a stay should be ordered."

61 His Honour had stated that question in the context of his citation of the passage from Barton v. The Queen (1980) 147 CLR 75 cited in Jago (supra) referring to the necessity before the power arises for there to be a fundamental defect going to the root of the trial as I have earlier described.

62   His Honour concluded that the only evidence which was capable of corroborating the story of the respondent had been destroyed and that the result of that is that to continue with the proceedings would result in an unfair trial. He did so on the basis of an examination of a number of South Australian cases and on the basis that it was essential to a fair trial that the appellant be allowed to support his version of the events. His Honour noted that the issue in the case before him was not so much the strength of the prosecution case without the Fortnightly Continuation Forms, but rather, "whether denying the defendant the opportunity to corroborate his version of events without the fortnightly forms would constitute an abuse of the court's processes".

63   His Honour concluded that where the facts as put on that basis were adequately before the court on an application preliminary to the calling of evidence, there was no error in the learned magistrate in not considering the strength of the prosecution case.

The applicability of Bourke

64   I regret that I am unable, in the light of the authorities to which I have referred and the principles I have earlier enunciated, to extend to these cases his Honour's view that "the issue in this case was not the strength of the prosecution case without the fortnightly forms". I say this with the greatest deference to the care and skill with which his Honour has framed his judgment. I am of the view that to approach the matter in this way fails to appreciate adequately that the onus in cases of this kind remains on the prosecution to prove the guilt of the accused beyond reasonable doubt from first to last and that the absence of essential documentation may appropriately be considered as leading to an acquittal where the tribunal of fact is not persuaded of guilt no matter what might have been the contents of the forms.

65   In the event that a defendant is deprived of corroboration of their account in these circumstances, one cannot conclude that their account might be diminished in weight by what might have appeared in the lost documentation. Nor can one consider that the prosecution case has eliminated the possibility of such error as might diminish the weight of the prosecution case. In those circumstances, it may well be that the appropriate course might be to acquit. Such a course, however, could not be taken without hearing what the defence is and whether or not the lost documentation might relate to the matters genuinely in issue between the parties such as to effect the strength of the prosecution case and such as to permit the drawing of an inference adverse to it. An application for an acquittal at the close of the Crown case might, of course, be upheld where that case is then seen as insufficient or where the magistrate has a reasonable doubt on the prosecution evidence.

66   A mere absence of documentation, the want of which might be supplied by secondary evidence, albeit it might carry with it some doubt as to the weight to be accorded to that evidence, is not sufficient so that a magistrate would not remain charged with the task of hearing and determining the substance of the complaint. These are not such cases as was Holmden (supra) where the averments had the effect of placing the onus on the accused and the destruction of the documents meant that the accused could not make an effective answer since she could not, by her own testimony, prove that the contents were not as averred.

67   In Bourke (supra), it is notable the prosecution relied upon an asserted inconsistency between versions given by the respondent in his record of interview with the Department. That interview, his Honour noted, was conducted in circumstances where the respondent did not have the forms before him and where, as his Honour noted, in the absence of the fortnightly forms, it would be unfair to rely upon the record of that interview as to the substance of what the respondent said as to his assertions that what he did was in accordance with his statutory obligation and as to his general credibility. His Honour concluded that it would be unfair to rely upon the record of that interview at least for the purpose of testing the credibility of the respondent. But I must remark that, insofar as the defence was that the respondent in that case did not knowingly obtain an improper payment in that the information he provided was accurate, so far as there was a test to his credibility based upon the answers in the record of interview which referred to "an honest mistake" and being "reckless", where those answers were given in the absence of the forms, one would have to be forgiven for concluding that his defence could not, on that basis, be rejected. If it is unfair to rely upon the record of interview, it should be rejected.

68   It is to be noted that, although there was in Bourke (supra) a case made on the basis that the prosecution would prove a systematic dishonest approach to providing income details and thus rely upon similar facts, and that the Department did not make errors when processing the information (in effect, again, evidence of system) there was no examination of those matters in the context of a possible rejection of that evidence nor consideration of the weight to be afforded it as I have already held are appropriate in these circumstances.

Conclusion

69   It is for those reasons that I conclude, in the matter of Stanley v. Farlow, that the decision of the learned magistrate refusing permanently to stay proceedings in respect of counts one to five in the information, was correct, having regard to the views I have expressed of the decision in Bourke (supra) and as to the applicable law in New South Wales.

70   I also conclude for those reasons that the learned magistrate in Duncan v. Crews & Anor erred in law in permanently staying proceedings in respect of counts one, five, seven and eight, having regard to those same matters, in that she failed to take into account, or, at least, express as having taken into account, the matters to which I have referred and since, on the face of the magistrate's decision, it did not appear that, having regard to her powers to reject evidence, to evaluate it, to draw or to refuse to draw inferences and to direct herself appropriately, she gave sufficient consideration to the exceptional nature of the remedy.

71   In the circumstances and having regard to the dispute between the parties as to the relevant question, but particularly having regard to both magistrates having referred to the possibility of acquittal in the circumstances, I shall re-list the matter for the parties to inform me what further questions remain outstanding, alternatively to bring in short minutes as to the appropriate form of orders.

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Last Modified: 05/11/2001