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Duncombe-Wall v Police

Duncombe-Wall v Police

Case [1998] SASC 6754 2 July 1998

Abuse of Process

Breach of Contract

Unconscionable Conduct

Admissibility of Evidence

Expert Evidence

Criminal Law

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DUNCOMBE-WALL V POLICE

Magistrates Appeal

LANDER J

The appellant was charged on information that on 5 February 1997 in a house occupied by the appellant and his former wife without lawful excuse he threatened to cause harm to his former wife, Mrs Susan Duncombe-Wall, intending to arouse fear that the threat would be, or was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.

The matter came before Mr Field SM when the appellant sought a permanent stay of the proceedings. The appellant claimed that the respondent had destroyed evidence being the record of an 000 telephone call made to the Police on the night of the offence. It was claimed that the evidence was important to the appellant’s defence. On 16 July 1997 Mr Field SM refused the application for a permanent stay concluding that the issue was not crucial to the defence “especially given the concession made by the prosecution that the defendant (appellant) did make a telephone call or was involved in speaking to Police during a telephone call on the number 000 on the 5th February 1997.”

In his reasons the learned Magistrate made the following suggestion:

“It maybe that the hardship perceived by the defendant could be ameliorated by the prosecution making further enquiries and adducing evidence from officers who were involved in the emergency call service and in responding to calls received on that night. I leave that for the prosecution to consider.”
Implicitly His Honour recognised that the loss of the evidence had at least raised a perception in the appellant’s mind that it would cause the appellant hardship.

Immediately after he delivered his reasons for refusing the application counsel for the appellant indicated that his client would object to Mr Field SM hearing the trial of the action because of “assessment of factual matters given in an endeavour to resolve this and a related matter”.

On 12 November 1997 the matter came on for hearing before Mr Boxall SM when the appellant pleaded not guilty. Counsel renewed the application for a stay of the proceedings. The transcript discloses that the learned Magistrate declined to make a ruling. Counsel who appeared at the trial swore an affidavit in relation to the hearing before the learned Magistrate. He has deposed that the learned Magistrate “took the view that its (the application for the stay) outcome had already been determined by another Magistrate.”

The trial proceeded. The prosecutor advised the Court that the Police Officers who attended at the house of the appellant and his wife would not be called. The matter was adjourned to allow the prosecutor to contact the Police Officers. When the matter resumed the prosecutor again informed the Court that the Police Officers would not be called.

The prosecutor called the appellant’s former wife and their son. He closed the prosecution case. The appellant gave evidence. The appellant’s solicitor in Family Court proceedings involving the appellant and his former wife was called. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duncombe-Wall v Police

Details

AGLC: Duncombe-Wall v Police [1998] SASC 6754
Case: [1998] SASC 6754
Decision Date: 2 July 1998

CaseChat Overview and Summary

The appellant, Duncombe-Wall, was charged with making threats to cause harm to his former wife, Susan Duncombe-Wall, on 5 February 1997. The appellant claimed that the police had destroyed the record of an emergency 000 call made on the night of the offence, which he argued was crucial to his defence. The appellant sought a permanent stay of the proceedings but was unsuccessful before Mr Field SM. The matter proceeded to trial before Mr Boxall SM, who found the appellant guilty of the offence. The appellant appealed against both the refusal to grant a permanent stay and the finding of guilt. The primary issue before the court was whether the destruction of the 000 call record constituted an abuse of process warranting a stay of proceedings. The court found that the prosecution had a duty to preserve all evidence, regardless of whether it was favourable or unfavourable to their case. The court held that the destruction of the 000 call record had deprived the appellant of a significant opportunity to present his case, and that there was no way to rectify or remedy the absence of the evidence. The court allowed the appeal, set aside the finding of guilt, and ordered a permanent stay of the proceedings against the appellant.

Orders