Police v Pakrou - [2008] SASC 364

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PAKROU
[2008] SASC 364
Judgment of The Honourable Justice Kourakis
22 December 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Prosecution appeal against decision of Magistrate to grant stay of proceedings prior to trial on the ground that it was an abuse of the process of the Court - respondent charged with indecent assault - offences alleged to have occurred at a bus stop and on a bus - CCTV footage may have been available of each location - police and/or operator of buses failed to obtain CCTV footage of either the bus stop or the bus on which the offences were alleged to occur - Magistrate granted a stay on the grounds that the CCTV footage may have shown the respondent was not the victim's attacker and the footage might have been secured if the police and bus operator had acted more carefully and expeditiously - whether Magistrate erred in staying the proceedings.
Held: The capacity of the Court to adjudicate on the facts has not been compromised by the loss of the CCTV footage - the heavy weight of the circumstantial evidence against the respondent minimises the chance that the CCTV footage would have shown that the victim's identification was mistaken - there was no resulting forensic unfairness - it is not an abuse of process of the Court for the police to prosecute the appellant, on the contrary it would bring the administration of justice into disrepute if this prosecution were not to proceed - appeal allowed - matter remitted to Magistrates Court for hearing.
Summary Procedure Act 1921 Pt 5, div 2; Criminal Law Consolidation Act 1935 s 286; Director of Public Prosecutions Act 1991 s 10A, referred to.
Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256; Jago v District Court (NSW) (1989) 168 CLR 23; Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police (1998) 197 LSJS 398; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Duncan v Crews (2001) 161 FLR 250; R v Roberts (1999) 106 A Crim R 67; Rukavina v Police [2004] SASC 247; Whelan v Police [2005] SASC 205; R v Lobban (2000) 77 SASR 24; Police v Sherlock [2008] SASC 294; Sedmak v Police [2008] SASC 307, discussed.
R v Williams [2001] 1 Qd R 212; R v Brambley (1998) 199 LSJS 197; R v Reeves (1994) 122 ACTR 1; Police v Hall (2006) 95 SASR 482; Bunning v Cross (1978) 141 CLR 54; CDJ v VAJ (1998) 197 CLR 172; Carr v The Queen (1988) 165 CLR 314; Bromley v The Queen (1986) 161 CLR 315; Williams v Spautz (1992) 174 CLR 509, considered.

POLICE v PAKROU
[2008] SASC 364
Magistrates Appeal
KOURAKIS J
Introduction

This an appeal from a decision of the Magistrates Court to say a prosecution for indecent assault brought against the respondent on the basis of strong evidence of identification because the police were not able to produce closed circuit television (CCTV) footage of the alleged attack.
The respondent is charged that on 8 March 2007 at Adelaide he indecently assaulted Ms R. It appears from the summary of the allegations provided to the Trial Magistrate that the prosecution case is that Ms R, who was then aged 18, was approached by the defendant whilst she sat at a bus stop located on the continuation of Wakefield Street through the centre of Victoria Square. It is alleged that at about 12:30 pm on 8 March 2007 the respondent placed his hand on Ms R’s hip and then kissed her on the cheek. She told him to stop but he persisted. When a bus stopped alongside where they sat the respondent placed his hand beneath Ms R’s top and touched her breast. Ms R broke free and boarded the bus. The bus she caught was running on the route 263 service to Glenelg. The respondent followed and sat next to her. A little later he grabbed her right thigh. He desisted when Ms R produced her mobile phone and said that she would make a video call to her boyfriend.
Ms R reported the assaults to police on the same day. The respondent was arrested and charged with the offence on 10 October 2007. The respondent pleaded not guilty and the complaint was set down for hearing. On the day of trial the respondent made an application that the prosecution be stayed because it was an abuse of the process of the Court. The Trial Magistrate granted the stay on the ground that the police had failed to procure certain CCTV footage of the interior of the busses on which Ms R and her attacker had travelled. The Trial Magistrate found that the CCTV footage might have been secured if the police and the bus operator had acted more carefully and expeditiously.
The relevant material
The application before the Trial Magistrate was made on the basis of a statement of agreed facts. Those facts included little more than a summary of the prosecution allegations, an assertion that the respondent denied those allegations and a description of the unsuccessful attempts the police had made to obtain CCTV footage of the bus stop and the busses on which Ms R had travelled on 8 March 2007.
On the appeal to this court, the appellant asked that I receive further evidence. That evidence comprised the statements of the witnesses and copies of the exhibits on which the prosecution intended to rely to prove the allegations to which I have referred. The further evidence is contained in an affidavit of a police prosecutor sworn on 14 October 2008. The respondent initially opposed, but later, and in my view very properly, consented to the admission of that evidence on this appeal. I find it difficult to understand how an application to stay a criminal proceeding, on the ground that the trial would be unfair because some evidence has been lost, can be determined without a complete understanding of the evidence on which the prosecution intends to rely. The interests of justice would have demanded the admission of that evidence on this appeal even if the respondent had continued to oppose that course. It is convenient to summarise the evidence that the prosecution would have adduced before proceeding further.
The sworn statement of Ms R made on 8 March 2007 is exhibited to the affidavit of the police prosecutor. In that statement she describes her assailant as a man in his late 70’s or 80’s who spoke with a very thick Middle Eastern accent. She observed that he wore hearing aids. The offender told her that he was Iranian and that he had been living in Glenelg for the last ten years. Ms R’s description of the assault in her statement accords with the summary to which I have already referred. The statement explains in more detail the firm but restrained way in which she attempted to repel the offender’s persistent approaches.
Ms R said that just as she had managed to push the assailant away a bus that ran on the 263 route to Glenelg pulled up and she was able to board it. Unfortunately, she was followed by her assailant who sat next to her on the bus. As the bus travelled down Grote Street he grabbed her right upper leg. When the bus was approaching West Terrace, Ms R took out her mobile phone and turned on the camera. Her assailant then desisted. He later alighted from the bus at the corner of Anzac Highway and Brighton Road.
Ms R reported the incident to a police officer at Glenelg shortly after she herself got off the bus. Ms R gave the police officer a very detailed description of the offender. She said that he had very thin, dark coloured, receding hair that was combed over the top of his head. He was clean-shaven and appeared to have false teeth. She observed that he had just about no nails on his thumbs. Ms R informed the officer that he was wearing a reddish brown shirt with black check lines through it and large optical glasses. She told him that she had seen her assailant that morning on a bus which left Glenelg at 9:25 am and travelled into the city. Ms R mistakenly told the police officer that that bus was running on the 265 route. Later, on 5 April 2007, Ms R told police that the bus she had caught at 9:25 am was actually servicing the 263 route.
The statement of a police constable attached to the photographic section of the forensic response section is also annexed to the prosecutor’s affidavit. On 13 March 2007, relying on a description given to her by Ms R, she compiled an identikit picture of Ms R’s attacker. A photocopy of that identikit picture is attached to her statement. Another exhibit to the affidavit of the police prosecutor includes photographs of the respondent and items seized from his home.
Ms R’s description of her assailant is very similar to the appearance of the respondent in the photographs. There is also a striking similarity between those photographs and the identikit picture to which I have referred. The photographs of the respondent also show that he has very short thumbnails. A photograph of a shirt seized from the respondent’s premises is similar to the shirt described by the complainant. Hearing aids that were seized from the respondent’s premises are also shown in the photographs.
I now turn to a description of the attempts made by police to secure CCTV footage of the maters complained of by Ms R. On the same day that Ms R reported the assault, the police attempted to obtain CCTV footage from a camera located in Victoria Square and from cameras that they understood were carried on the busses on which the complainant had travelled on that day. The following facts relating to those attempts were agreed before the Trial Magistrate.
The police requested CCTV footage for the period of 12:15 pm to 1:15 pm from the camera located in Victoria Square. That camera was situated near the statue of Queen Victoria on the northern side of Wakefield Street and had the capacity to take film of the bus stop where Ms R alleged she was attacked. However, no person was manually operating the camera at the relevant time. For that reason it was not panned across to the bus shelter. Ultimately, the police only received footage from 12:15 pm to 12:19 pm and from 12:30 pm to 1:14 pm. As was to be expected, that footage did not show the bus stop in Victoria Square. For that reason the police did not make any further attempt to obtain the footage from 12:19 pm to 12:30 pm. The footage for that period is no longer available.
It was also agreed that the police had attempted to retrieve CCTV footage taken by cameras located in the busses operated by Torrens Transit on the routes on which Ms R had travelled on 8 March 2007. It was an agreed fact before the Trial Magistrate that as a result of errors on the part of the police or Torrens Transit, the bus first identified as the bus on which Ms R had left the city, was in fact the bus that had left immediately before the bus that she had caught. Moreover, the route 265 bus on which Ms R mistakenly told police she had travelled into the city was also the bus that left immediately before the bus, running on route 263, that she had actually caught. As it turned out no footage was available from the wrongly identified busses because of a system malfunction. System malfunctions of that kind affect about 10 to 20 per cent of all requests for CCTV footage.
It was also agreed that the mistaken identification of the outbound bus was not discovered until July 2008, at which time CCTV footage of the bus on which Ms R had actually travelled was no longer available. The statement of agreed facts received by the Trial Magistrate also recorded that police had never attempted to obtain CCTV footage of the correct city bound bus servicing the 263 route on which Ms R had travelled into the city that morning. If the CCTV footage taken in the bus on which the complainant and her attacker left the city had been retrieved, it would have recorded a clear image of the faces of Ms R and her attacker even though it may not have shown any activity below seat back level.
Facts were also agreed about the enquiries that had been made of certain bus drivers. The driver of the bus servicing route 263, that had left for Glenelg immediately before the bus boarded by Ms R, was spoken to and not surprisingly he had no recollection of any incident involving Ms R. No statement was taken from the driver of the bus on which Ms R had travelled from the city to Glenelg in the afternoon of 8 March 2007. Torrens Transit had no record of any driver incident report relating to the bus on which the complainant had travelled.
On appeal, I received, with consent, further evidence about the confusion that beset the requests for CCTV footage from Torrens Transit. What follows is a summary drawn from the affidavits that were received by me.
Firstly, it appears that a detective assigned to an investigation of the complaint may have mistakenly believed that the incident had occurred at 1:00 pm and not 12:30 pm on 8 March 2007. The detective cannot now say how a reference to that time came to be made on her notes. In any event, the detective phoned a transit police officer so that he might retrieve CCTV footage from the bus boarded by Ms R. In that conversation the transit officer made reference to bus number 876 as being the bus running on the 263 route at that time. The transit police officer sent an email to the detective on the same day advising that bus 876 was the bus operating the 263 route at the time of the “incident @ 1300 hrs” and that bus 1605 was the morning bus going into the city on route 265 at 9:25 am. On 15 March the transit officer advised by email that no footage was available from either bus. The bus identified as the bus boarded by Ms R was neither the 1:00 pm bus nor the 12:25 pm bus she actually boarded. It was the bus that had left immediately before the 12:25 pm service. On 17 March the detective sent the transit officer a copy of Ms R’s witness statement in which the correct time of 12:30 pm is recorded. The reason for the failure of the detective and the transit officer to notice their mistaken belief about the time of the incident can only be explained by oversight. Ironically as I have already explained the bus that was identified was not the one which left at 1:00 pm but a much earlier one.
The detective to whom I have referred sent an email to the transit officer with the correct information about the bus that Ms R had taken into the city on the morning of 8 March 2008 after Ms R corrected her statement in April 2008. The transit police officer did not act on that information. In an affidavit received by me the transit officer deposes that he may have asked the detective to do so herself or that he may have thought that it would be a futile exercise to do so because of the lapse of time.
Both the detective and the transit officer deposed that they at all times genuinely attempted to identify the correct busses. Those claims are not disputed by the respondent.
The following further facts were agreed for the purpose of the application before the Trial Magistrate. The defendant was aged 75 years on 8 March 2007. He had immigrated to Australia from Iran in 1996. In March 2007 the defendant routinely travelled from Glenelg to the city by bus to attend English classes in Victoria Square on Wednesdays and Thursdays. It can be seen that the strong correlation between the personal facts disclosed by the offender to Ms R and these agreed facts about the respondent makes a very strong circumstantial case against him. Police first spoke to the respondent about the incident of 8 March 2007 on 7 June 2007. On that day he denied the offence and said that he was unable to recall his whereabouts.
I was told by consent on the hearing of this appeal that the respondent’s English classes were held in the Torrens Building between 10:00 am and 1:00 pm. Affidavits dealing with that and other matters were later filed by the respondent and received by me. The affidavit evidence showed that the respondent and his wife had attended English classes held at the Torrens Building from about 2004 and that in 2007 they were attending the 10:00 am to 1:00 pm classes on Wednesday and Thursday. A roll kept by the teacher of the Wednesday class held on 7 March 2007 showed that the respondent was present but that his wife was absent. The teacher of the class held on Thursday 8 March 2007 did not keep a roll and could not say whether the respondent or his wife attended on that day but she confirmed that they were regular attendees of her class.
In an affidavit filed by the respondent and received by me on this appeal, the respondent repeated his denial of the offences. He swore that he had no reason to remember his whereabouts on 8 March 2007 and that his attempts to trace his steps through bank records and phone accounts had proved unsuccessful. He deposed to a belief that he had attended his English class on that day even though he had no specific recollection of having done so. It appeared from this material that the respondent would alight from the bus at the same stop on the corner of Anzac Highway and Brighton Road at which the offender left the bus on 8 March 2007. I also received affidavits from members of the respondent’s family saying that they could not recall any information that might show whether the respondent had attended his English class on 8 March 2008.
The cases
In Batistatos v Road Traffic Authority (NSW)[1] Gleeson CJ, Gummow, Hayne and Crennan JJ made the following general observations about the court’s power to stay proceedings as an abuse of process:
[1] (2006) 226 CLR 256.
In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:
‘The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.’[2]
[2] Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256 at 264-5, [8].
Earlier, in Rogers v The Queen, McHugh J observed:
‘Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.’
His Honour added:
‘Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.’
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.[3]
[3] Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256, at 267, [15].
It is apparent from the reasons of the majority in Batistatos that the extent to which the judicial process is compromised is of great importance in determining whether proceedings are an abuse of process. The majority took the view that the evidence on which the plaintiff sought to prove his case in Batistatos was so unreliable that the purported adjudication of the plaintiff’s claim would be a hollow exercise. It would give the appearance of applying the judicial method to evidence that was incapable of any real assessment. So much is clear from the following passages from the judgment of Bryson JA in the Court of Appeal of New South Wales, which were referred to as the “critical holding” by the majority of the High Court:
No more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just. …
To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff's injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate, with any realistically useful information.[4]
[4] Batistatos v Road Traffic Authority(NSW) (2006) 226 CLR 256 at 278, [55].

In the often cited passage from the decision in Jago v District Court (NSW)[5] Mason CJ accepted that the public interest in bringing persons charged with crimes to trial was one of the important competing considerations which a court must balance on an application to stay a proceeding on the ground that it is an abuse of the court’s process:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton; Sang; Carver v Attorney-General (NSW). At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo; Bell v Director of Public Prosecutions, as explained in Watson, and Gorman v Fitzpatrick. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney.
To justify a permanent stay of criminal proceedings, there must be 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”: Barton, per Wilson J.[6]
[5] (1989) 168 CLR 23.
[6] Jago v District Court (NSW) (1989) 168 CLR 23 at 33-4.
The ground on which a stay was sought in Jago was delay. Where it is sought, as it is here, on the ground that material evidence is unavailable it must be remembered that the “right” to a fair trial does not include, as a general proposition, a right to the production of all of the evidence that could have been collected by the police if they had conducted a better investigation.
In Penney v The Queen[7] Callinan J said:
The appellant's submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case. Mason CJ in Jago v District Court (NSW) may be taken to be alluding to precisely such a possibility in the following passage:
‘Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.’[8]
[7] (1998) 72 ALJR 1316.
[8] (1998) 72 ALRJ 1316 at 1319, [18].
It appears that Callinan J understood the phrase “the criminal process” appearing in the passage of Mason CJ on which he relied to include police investigations. With respect I would doubt that premise. Ordinarily the phrase would be understood to refer to the process of the Court, which, in the context of the grounds for the stay sought in Jago, would include not just the trial but also the late institution of the proceedings. Real difficulties are presented if the concept of unfairness is divorced from curial proceedings themselves. Under Australia’s constitutional arrangements the standards of criminal investigation that are to be observed and the resources that will be devoted to particular investigations are the responsibility for those who exercise executive, not judicial power. Under South Australian statutory arrangements they are largely the responsibility of the Commissioner of Police.[9]
[9] Police Act 1998 s 6.
The courts have no control over the budgets or the operational procedures of the police. They are matters for the executive and Parliament.
The reference in the passage from the judgment of Mason J in Jago, cited by Callinan J, to “rules of law and practice designated to regulate the course of the trial” is also important. The common law has developed positive rules of law that minimise the disadvantages that an accused might face at trial because of the way in which the State exercises its police powers. I discuss those rules further below. However, for now, it is sufficient to observe that those rules are formulated in ways that do not trespass directly on the executive’s area of responsibility. The proposition that the Court may venture beyond these settled rules and assume a supervisory function over the adequacy of police investigations by closing its doors to the enforcement of the criminal law where the investigation is inadequate is a large proposition. It is difficult to see how courts could even begin to develop a standard of adequacy. However, on this appeal the respondent submits that that is precisely what I should do. It is submitted that I should examine the reasons, and determine responsibility, for the failure of the police to obtain the CCTV footage and that I should have regard to those matters in the exercise of my power to stay. It is said that the cases support that approach. It is necessary therefore to consider carefully the authorities on which the respondent relies.
In R v Williams[10] the Queensland Court of Appeal said:
It was conceded that there is no general rule in Australia that a complete investigation is a necessary element of the trial process or of a fair trial. As in Penney, in the present case failure to pursue a particular line of investigation gives no ground for thinking that the appellant has been deprived of a proper opportunity of exculpation. It is nearly always possible to make suggestions of further matters that might have been investigated in criminal matters, although it must be said that the present case is a very strong example of multiple failures to follow obvious leads. In the end, however, the question is whether the evidence actually adduced was adequate and whether the trial was fair. The unsatisfactory nature of the investigation must therefore be kept in mind as a potential factor when this overall question is considered.[11]
[10] [2001] 1 Qd R. 212.
[11] R v Williams [2001] 1 Qd R. 212 at 215, [7].
That statement shows the difficulty in giving precise content to the general rule which governs the exercise of the court’s discretion to stay proceedings for an abuse of process. In my respectful view the passage rather begs the question of what is meant by “a proper opportunity of exculpation” and a “fair trial”.
In Holmden v Bitar[12] Cox J allowed an appeal against a decision of a Magistrate refusing to stay a prosecution for the importation of a prohibited product contrary to the Quarantine Act 1908 (Cth). In that case, the canned product that the complainant alleged was meat, that had been imported in contravention of the Act, was lawfully destroyed after it had been seized. The complainant nonetheless relied on a statutory presumption of the accuracy of his averment in the complaint that the product was meat. Cox J explained the special combination of factors that persuaded him that the prosecution was an abuse of the process of the Court:
What was very unusual here was the combination of the averment provision and the destruction of the actual evidence. Obviously the former would not have been enough without the latter, and in many cases a court would be able to find a less dramatic but equally effective way of dealing with the mere destruction of an important piece of evidence — by reaching the same conclusion by another route, perhaps, or by finding that the prosecution had not proved its case beyond reasonable doubt. However, such a course was not open to the learned magistrate here. Because of s 86D, if the case proceeded to judgment in the ordinary way the respondent (it would seem) had to be found guilty. Such an adjudication would necessarily have been made without the benefit of any analytical evidence that the respondent might have been able to call had the tins that were seized from her not been destroyed by the prosecution before trial.[13]
[12] (1987) 47 SASR 509.
[13] Holmden v Bitar (1987) 47 SASR 509 at 517.
I would also observe that the destruction of the meat by an officer of the department that had brought the prosecution where there was no pressing reason to do so effectively subverted the complainant’s duty of disclosure of all relevant material.
In Duncombe-Wall v Police[14] Lander J allowed an appeal against a conviction on a charge of threatening harm where the Magistrate had refused to stay the prosecution. The offence arose out of a violent argument between Duncombe-Wall and his wife. Duncombe-Wall claimed that during the argument he made two calls to police on the 000 number. His son contradicted that account. His son gave evidence that he telephoned the 000 number and that Duncombe-Wall had first attempted to prevent him from doing so and then later intercepted the call through another extension and spoke to the police.
[14] (1998) 197 LSJS 398.
Soon after Duncombe-Wall was charged, his solicitor wrote to the police prosecutor requesting that the police preserve the 000 tape. After that letter was sent the proceedings in the Magistrates Court were adjourned to enable the 000 tape to be recovered. A police prosecutor subsequently replied to the solicitor refusing to comply with the request on the basis that it was unnecessary to do so because of the statement given by Duncombe-Wall’s son which was enclosed.
Duncombe-Wall’s solicitor replied by return mail asking the police prosecutor to reconsider the matter. The police prosecutor wrote back saying that “she had been instructed by her superior officer that the tape was not to be recovered”. The solicitor then issued a subpoena. On a date after it was announced in open court that the subpoena would be issued, but before the date of service of the subpoena, the tape was reused thereby obliterating the record of the conversation. Lander J found that the tapes of those calls had the capacity to affect the assessment of the credibility of the competing accounts of events. Lander J concluded:
I think the appellant lost a real opportunity to put the whole of his case to the Learned Magistrate. … This was the only independent objective evidence available to the appellant. There was no direction that could have been given to the prosecution in the presentation of its case which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence.
It is no answer to the appellant’s argument that his evidence was destroyed simply because of a failure of communication within the police department rather than for the purpose of interfering with the appellant’s fair trial. The purpose is not important. The end result is. Of course if the evidence had been destroyed to deny the appellant a fair trial then an order would have gone immediately.[15]
[15] (1998) 197 LSJS 398 at 408.
The decisive weight given by Lander J to the lost opportunity to put the defence case is problematic. Common law courts have for centuries adjudicated disputes where there has been no “objective evidence” and the only evidence has been oath against oath. Those trials have never been considered to be, for that reason alone, unfair. To my mind the most significant feature of the police conduct in Duncombe-Wall is that it resulted in a serious breach of the prosecutor’s duty to disclose all material evidence to the defence.[16] At the time that the 000 tape was obliterated proceedings had been instituted. The police prosecutor’s duty of disclosure plainly required production of the tape. There was a deliberate decision not to comply with the duty of disclosure, even though the Magistrate accepted that the police prosecutor had formed an innocent, but mistaken, view about the application of that duty in the particular case. In my view it can be accepted that a denial of the procedural right to disclosure of all relevant material may render an ensuing trial unfair. That is particularly so in a case where there is likely to be some special difficulty in assessing the credibility of the evidence that the prosecution proposes to call in the absence of that material. In Duncombe-Wall the assessment of the credibility of the witnesses based on their demeanour in the witness box was fraught with the risk of error because of the underlying hostility between the witnesses.
[16] The decision of Judge Wilson in R v Brambley (1998) 199 LSJS 197 to stay proceedings on an information alleging production of cannabis where the plants seized were unlawfully destroyed before trial should also be understood in the context of the prosecutorial obligation to disclose and make available to the defence all material evidence.
In Commonwealth Service Delivery Agency v Bourke[17] Wicks J dismissed an appeal from a decision of a Magistrate permanently staying proceedings on 70 charges of social security fraud because the forms completed by the respondent had been destroyed. As far as one can tell from the reported facts the forms were destroyed as part of the routine culling of old forms and was performed in accordance with the Archives Act 1983 (Cth) before the prosecution was commenced. The prosecution could prove that Bourke was not entitled to benefits because he had in fact earnt more than the applicable income threshold in the relevant period. However the respondent contended that he had truthfully disclosed his income and that the forms would have supported his defence. In effect his defence was that he was paid benefits to which he was not entitled because of bureaucratic error.
[17] (1999) 75 SASR 299.
The prosecution proposed to rely on a secondary source to prove the contents of the forms that had been lost. The allegedly false earnings information given in the forms had been transposed onto an electronic data base by clerical officers in the ordinary course of their employment. The burden of the prosecution case was that it was inherently improbable that mistakes would have been made in transposing the earnings information supplied by Bourke on 70 different occasions. Wicks J ordered a stay because the only evidence which was capable of corroborating the story of the appellant had been destroyed and as a result the trial would be unfair.[18]
[18] Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 at 304, [16].
The prosecution case in Bourke was a relatively straightforward and very strong circumstantial case of a type that is commonly heard by criminal courts. There is no general principle that a circumstantial case is unfair, in a forensic sense, because some direct, evidence of the fact or facts that the circumstances tend to prove, is unavailable.
In Duncan v Crews,[19] Greg James J reached the opposite conclusion to Wick J on very similar facts. In doing so, in my respectful opinion, he correctly relied on the following cardinal considerations. First, he placed significant weight on the protection afforded to the defendant by the criminal onus of proof.[20] Second, he limited the examination of fairness to the forensic process itself.[21] Third, he considered the extent to which an adjudication based on the proposed evidence was attended by a risk of miscarriage.[22] With respect I too share the reservations about the decision in Bourke expressed by Greg James J[23] and Doyle CJ in Sedmak v Police.[24] In my respectful opinion the approach and conclusion of Greg James J should be preferred to that of Wicks J.
[19] (2001) 161 FLR 250.
[20] Duncan v Crews (2001) 161 FLR 250 at 257-8, [49]. Approved in Sedmak v Police [2008] SASC 307 at [30] per Doyle CJ.
[21] Duncan v Crews (2001) 161 FLR 250 at 258, [51], [55].
[22] Duncan v Crews (2001) 161 FLR 250 at 258, [50].
[23] Duncan v Crews (2001) 161 FLR 250 at 260-1, [64]-[68].
[24] [2008] SASC 307 at [41].
In R v Roberts[25] the New South Wales Court of Criminal Appeal confirmed the Trial Judge’s refusal to stay proceedings for the theft of two motor vehicles which had been found in the possession of the accused. The vehicles were disposed of by police before trial and could not be traced. The prosecution intended to call an expert, who had examined the vehicles found in the possession of the accused, to give his opinion that those vehicles were the same vehicles as the ones that had been stolen. The appellant in Roberts complained that the disposal of the vehicles had deprived him of the opportunity to establish that the vehicles found in his possession were not the ones that had been stolen. Smart AJ held that the Trial Judge was right to have regard to the strength of the prosecution case, the seriousness of the offences and the speculative nature of the defence suggestion that an independent examination of the vehicles might have assisted his case.[26] The decision in Roberts demonstrates that the denial of the procedural right of the accused to disclosure of all material evidence is not a sufficient reason to stay criminal proceedings. The effect of the loss of that evidence on the capacity of the trial court to adjudicate the dispute on the evidence that will be led is of considerable importance.
[25] (1999) 106 A Crim R 67.
[26] R v Roberts (1999) 106 A Crim R 67 at [38], [39] per Smart AJ.
In Rukavina v Police[27] the appellant appealed her conviction for the theft of videos from a K-Mart store. A store security officer gave evidence that she saw the appellant take the videos from the store after concealing them in her child’s pusher. When the appellant was stopped outside of the store she claimed that she had purchased the videos at another department store. The police who were called to the store did not photograph the videos. Videos sold by department stores carry an identifying code. The police did not establish the provenance of the videos found in the child’s pusher by opening the encryption. There was no good reason for the police failing to do so. Instead they immediately returned the videos found in the pusher to the security officer and as a result those particular videos could no longer be located. The respondent in Rukavina conceded that the appeal should be allowed on a number of grounds unrelated to the return of the videos by the police. The issue on appeal was whether a new trial should be ordered or an acquittal should be substituted for the conviction. Nyland J found that the conduct of the police had deprived the appellant “of the opportunity to acquire and lead evidence that could have resulted in an acquittal at trial”. However, a verdict of acquittal was substituted on the appeal because Nyland J found that the prosecution evidence had failed to exclude the possibility that the videos had been purchased from another department store.
[27] [2004] SASC 247.

In Whelan v Police[28] Gray J allowed an appeal against a conviction for serious criminal trespass and larceny and ordered a permanent stay of the proceedings. In Whelan it was common ground that an antique store was broken into on 7 March 2003 and jewellery and other goods taken. The previous day a shop employee had locked the stolen goods in a glass cabinet. The shop was broken into overnight. The next morning the employee saw, on arrival, that the right hand side sliding door of the cabinet had been removed. She testified that the glass door was broken near the bottom edge. She gave evidence that there were indented grooves which functioned as a handle on the right hand side of the door. She said that she observed fingerprints on the inside of the glass door and that she had not seen any fingerprints on it the day before. The owner of the store described the glass door in a similar way. She too observed what she described as a distinct fingerprint on the inside of the glass door. However she testified that the door was broken near the top edge.
[28] [2005] SASC 205.
A police crime scene officer, Constable Spence, attended the store. He gave evidence that he photographed 15 fingerprints on the inside of the glass door. He concluded that the prints were on the inside of the door because they were on the opposite side to the indented grooves. His notes recorded that the glass door was broken at the bottom corner. When questioned about whether the glass door was broken on the top or the bottom he answered that he did not believe that his notes were wrong. However he qualified his answer by observing that the glass could be fitted either way in the cabinet. After photographing the fingerprints and ascertaining that the store no longer wanted the glass door, Constable Spence disposed of the glass. It was common police practice to do so in those circumstances. It does not appear from the report of the case that the fingerprints had been matched to a suspect before the glass was disposed of. It is however likely that no one had been charged by that time.
The appeal against conviction was allowed on the ground that the Magistrate had misdirected himself on the onus proof. The question that then arose was whether the matter should be remitted for retrial or whether an order permanently staying the prosecution should be made because the glass door had been destroyed. Gray J found that, notwithstanding the evidence of the employee, the store owner and Constable Spence that the fingerprints were on the opposite side to the indented grooves, the possibility that Constable Spence had mistakenly recorded whether the glass door was broken on the top or the bottom raised a real possibility that his evidence was “inaccurate and unreliable”. A permanent stay was ordered because the destruction of the glass door deprived the appellant of the opportunity to “fully examine the evidence and challenge the prosecution case”. Gray J explained:
There is a clear public interest in the careful storage of crucial exhibits. This forms an important component of the provision of a fair trial. In the present case, the public interest in a fair trial outweighs competing public interests.[29]
[29] Whelan v Police [2005] SASC 205 at [64].
It is not obvious to me that an assessment of the evidence of the three witnesses to which I have referred could not safely have been undertaken by the Court even in the absence of the door itself. For example, if the glass door had been disposed of before the police had arrived by the store owner while cleaning up the store I doubt that it would have been in any relevant sense unfair to admit the evidence of the store owner and her employee. To my mind the passage in the judgment of Gray J reproduced above suggests that the decision in Whelan rests on the basis that the destruction of the glass door compromised the prosecutorial obligation to disclose all relevant material. It was the circumstance that such difficulty as the defendant faced at trial resulted from the loss of that procedural protection that supported a favourable exercise of the discretion to stay the prosecution. Although no suspect had been identified when the crime scene examiner disposed of the door, there was a real and foreseeable prospect that someone might be identified and charged if the fingerprints were matched. The police generally act as both the investigating and initial prosecuting authority in South Australia. Even where the prosecution is undertaken from the beginning by the Office of the Director of Public Prosecution, it acts on a brief provided to it by the police. There is a close connection therefore between those who are responsible for criminal investigations and the prosecutions of criminal proceedings. Before leaving Whelan I observe that on the facts of that case, the alternative course of excluding the evidence that the fingerprints were on the inside of the glass door may have adequately met any unfairness that resulted from the destruction of the glass door. It is to the related area of the discretionary exclusion of evidence on the ground of unfairness that I now turn.
The decision of the Full Court of the Supreme Court of this state in R v Lobban[30] illustrates how discretionary exclusion of evidence may operate as an alternative remedy to a stay for an abuse of process where an accused is denied access to material evidence. Lobban was charged with possession of cannabis for sale. Material seized from his house was analysed and identified as cannabis. Later, the cannabis was destroyed, and no sample was kept for evidentiary purposes, in contravention of the obligation imposed by s 52A of the Controlled Substances Act 1984. At trial Lobban opposed the receipt of evidence which identified the seized material as cannabis and sought a stay of the information as an abuse of process. The Trial Judge found that the cannabis was destroyed as a result of a mistake. He dismissed the application for a stay and admitted the evidence. The Full Court only considered the question of the exclusion of the evidence. It held that the Bunning v Cross[31] discretion was not applicable because the evidence of analysis had not been unlawfully obtained.[32] However, the Court recognised the existence of a more general discretion to exclude evidence, which it referred to as the general unfairness discretion.[33]
[30] (2000) 77 SASR 24.
[31] (1978) 141 CLR 54.
[32] See R v Lobban (2000) 77 SASR 24 at 32-4, [33]-[41]. That part of the decision in Lobban must now be understood with the qualification made by Doyle CJ in Police v Hall (2006) 95 SASR 482 at 491-2, [40]-[44].
[33] R v Lobban (2000) 77 SASR 24 at 39-49, [59]–[83].
Martin J stated the scope of the discretion in this way:
Bearing in mind the statements in the authorities to which I have referred, in my opinion a discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is the duty of the court to attempt to ensure that the trial is fair: see Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23 and Dietrich. The existence of this discretion is inherent in that duty of the court. For ease of reference I will refer to this discretion as the "general unfairness discretion".[34]
[34] R v Lobban (2000) 77 SASR 24 at 45, [77].
That statement of the scope of the discretion must, I think, be understood in the context of the following observation made in Cross on Evidence,[35] and to which Martin J had earlier referred, about the residual discretion to reject evidence that operates unfairly:
It has been said that it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence which would not fall within the more specific principle that evidence will not be admitted where its prejudicial effect exceeds its probative value.[36]
[35] Cross on Evidence, 7^th Australian edition.
[36] Cross on Evidence, 7^th Australian edition at [11125].
The reason for the difficulty referred to in that passage is that the purpose of the discretion is to remedy forensic unfairness only. It is unfairness in the trial, and not in the investigation that precedes the charge, that is the concern of the Court. True it is that the latter may well lead to the former, but the two should not be conflated.
Martin J cautioned that the general unfairness discretion does not permit idiosyncratic notions of what is fair and just. He emphasised that the purpose of the discretion is the protection of rights and privileges, including procedural rights. Martin J explained that the discretion required an examination of the risk that an accused may be improperly convicted and that the Court should not underestimate the capacity of juries to understand and apply the directions and warnings of the Trial Judge. Martin J accepted that the conduct of law enforcement agents and the public interest in the prosecution of serious offences are material considerations.[37]
[37] R v Lobban (2000) 77 SASR 24 at 48, [82].
The reasoning which led Martin J to conclude that the evidence was correctly admitted in Lobban provides a useful example of how the general unfairness discretion should be approached. Martin J said:
While the conduct of the police in destroying the cannabis was unlawful, it was not a deliberate breach of s 52A of the Act. There is no element of the court giving its imprimatur to the unlawful conduct. The evidence of the analysis is critical to the prosecution case. Although the appellant has lost the opportunity to test the prosecution evidence through analysis conducted by an analyst of the appellant's choice, in the particular circumstances of this case there is no reason to doubt the reliability of the evidence of identification led by the prosecution in the sense in which "reliability" was explained in Rozenes v Beljajev. Photographs of the material were taken. The appellant did not cross-examine the analyst and did not deny that the material was correctly identified as cannabis. The entire conduct of the defence case lacks any suggestion of an attack upon the merits of the evidence. Rather it seeks to rely upon a mistake by a police officer not connected with the investigation without demonstrating any sound basis for a conclusion that the error by that officer has created any genuine unfairness to the appellant or any risk of a miscarriage of justice. (R v Lobban (2000) 77 SASR 24 at 50-1, [88]).
It is significant I think that the availability of the general unfairness discretion in civil cases has been doubted.[38] That doubt suggests that the discretion springs from a concern that there may be some evidence that, although probative and therefore admissible, has a dangerous capacity to mislead jurors who do not share the combined and inherited wisdom of judges.
[38] CDJ v VAJ (1998) 197 CLR 172 at 215, [142].
The exercise of the power to stay criminal proceedings on the ground that the police failed to preserve possibly exculpatory evidence has been considered very recently by two justices of this court. The first case to which I refer is Police v Sherlock.[39] Mr Sherlock was charged with theft of clocks from a department store by removing the price tickets before placing them in a bag and leaving the store. A security officer swore that he had seen Mr Sherlock circling around the floor of the store and that he had seen him remove the price labels. Another officer testified that he had followed and stopped Mr Sherlock in a lift foyer situated between the store and the street. According to that officer, Mr Sherlock immediately argued that he had not yet left the store and therefore could not be apprehended. In cross-examination it was put to the officer that stopped Mr Sherlock that Mr Sherlock had protested that he was going to the first floor to look at more clocks. The area of the store from which the clocks were taken was kept under CCTV surveillance. The first mentioned security officer swore that he had reviewed the footage and that Mr Sherlock did not appear on it. The tapes reviewed by that security officer had been reused by the time of trial. The Trial Magistrate found that that store security officer appeared to be honest and had acted in accordance with the store’s policy. Nonetheless, she stayed the proceedings because “in the absence of the chance to assess the contents of the CCTV tape” the defendant could not receive a fair trial. The stay was confirmed on appeal to this court by David J. David J found that the defence were left “without the means of objectively ascertaining the actions of the respondent as he appeared on the tape” and held that for that reason the defendant “was unable to receive a fair trial”.[40]
[39] [2008] SASC 294.
[40] Police v Sherlock [2008] SASC 294 at [23].
Sherlock appears to decide that it is a sufficient basis for a stay that the honest conduct of a person, other than a police officer involved in the investigation or the prosecution of an offence has caused the loss of evidence against which the prosecution evidence might have been tested. If unqualified the application of that principle may lead to some curious results. Let it be assumed for example that the evidence in Sherlock had showed that there were brand new clocks in Mr Sherlock’s bag and that exactly the same make of clocks were on display in the store. Let it also be assumed that there were no price tickets attached to the clocks in Mr Sherlock’s bag but that tickets were attached as a matter of invariable practice to the clocks of the same make displayed in the store. That evidence in combination with the implied admissions made by Mr Sherlock when he was stopped would make out a very strong prosecution case, even without the evidence of the security officer’s observations that Mr Sherlock had removed the labels. If it be accepted that the hypothetical case against Mr Sherlock that I have imagined could properly proceed on the circumstantial evidence alone, it is difficult to see why the evidence of the security officer’s observations could not also be led together with that circumstantial evidence. It seems to me therefore that where an application to stay a prosecution is made on the ground that important evidence has been lost, the capacity of the Court to assess the weight of the totality of the evidence on which the prosecution intends to rely, and the public policy considerations identified in Jago and Lobban, must also be weighed against the disadvantage of a defendant.
In Sedmak[41] Doyle CJ considered an appeal against the refusal of a Magistrate to stay a prosecution for theft. The defendant in those proceedings made 30 withdrawals of cash totalling about $70,000 by electronic means from the account of her employer. She claimed that she had the authority of her employer to do so. The records of the bank relating to the persons authorised by the employer to operate the account were lost or possibly destroyed.
[41] Sedmak v Police [2008] SASC 307.
In dismissing the appeal Doyle CJ said:
That is why I emphasise that the power to stay proceedings is not to be approached on the basis that the court will stay proceedings simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendant’s point of view.[42]
It also must be remembered that the interests of the accused are not the only matters calling for consideration. A court must also consider the public interest in charges of criminal conduct being brought to trial and decided: Jago at 33 Mason CJ, at 72 Toohey J. The interests of the persons affected by alleged criminal conduct also fall for consideration: Jago at 50 Brennan J.[43]
For these reasons, the concept of unfairness that will enliven the power is a relatively narrow one. The power to stay proceedings will be enlivened by unfairness of a kind such that, allowing for the limitations on the powers of a court to ensure fairness, there remains some factor which means that unless a stay is granted, the trial process itself will be unfair.[44]
[42] Sedmak v Police [2008] SASC 307 at [29].
[43] Sedmak v Police [2008] SASC 307 at [31].
[44] Sedmak v Police [2008] SASC 307 at [31].
Discussion
In my view the principles governing the exercise of the discretion to stay a prosecution where evidence has been lost and the principles governing the exercise of discretion to exclude evidence for the same reason should be developed coherently. It is of paramount importance to recognise that both discretions are concerned with forensic unfairness. There is forensic unfairness when the exceptional circumstances in which the proceedings are brought has denied, to a significant extent, an accused the benefit of the operation of the common law and statutory rules and practices that are calculated to ensure a fair trail.
In my view it is necessary to return to some basic propositions to give some more meaningful content to the concept of forensic unfairness. The first point to be made is that courts have always made findings of fact on less than all of the available evidence. They certainly have made findings of fact on much less than evidence of the nature that will be led in this case. The admission of evidence tendered by one party that the other party finds it difficult to disprove by independent and objectively verifiable evidence does not of itself render the trial of the issue to which it relates unfair. Of necessity, civil and criminal trials will often be fought on the basis of oath against oath. A criminal court very rarely has the advantage of having the alleged crime captured by CCTV footage and replayed before it on a television screen. Many convictions have been recorded after trials in which identity has been established by less than DNA evidence.
It follows that it is not an abuse of a court’s process, without more, to ask it to make findings of fact on less than all of the evidence that might possibly have been secured and brought before it.
Secondly, the procedural and substantive rules of the common law trial process are designed to meet the practical reality that findings of fact will often be made on imperfect evidence. The common law has developed a number of mechanisms to guard against miscarriages in such cases. The substantive right enshrined in the presumption of innocence and the rules against double jeopardy are the most obvious. There are also procedural protections. An accused is entitled to reasonable notice of the case that he or she must meet and the prosecution is bound to disclose exculpatory as well as incriminatory material. That obligation is found in common law rules, the committal procedure provided by Division 2 of Part 5 of the Summary Procedure Act 1921, s 286 of the Criminal Law Consolidation Act 1935 and s 10A of the Director of Public Prosecutions Act 1991. Further protections are provided by the law of evidence. It allows for the exclusion of evidence that is so prejudicial that the Court cannot safely assess such probative value as it might have. The public policy discretion allows the Court to exclude evidence that has been unlawfully obtained. Evidence may be excluded because its prejudicial effect outweighs its probative value. Evidence of that nature may be said to create an unacceptable risk of a miscarriage of justice because by its very nature it may induce a court, or at least a jury, to give it more weight than it deserves. The exclusionary rules applicable to evidence of some forms of identification and to evidence of mere criminal disposition are particular applications of that general principle.

There are further important safeguards provided by the common law and statutory rules concerning the directions that must be given in a criminal trial.
Where prejudicial or unreliable evidence is admitted special directions and warnings are often required to avoid a miscarriage of justice within the meaning of that phrase in the common form criminal appeal provisions.
A trial judge may, and in some cases must, give directions that draw attention to the care that is needed in assessing a wide range of evidence. For example, the High Court held in Carr v The Queen[45] that although there was no rule of practice that juries should be warned that it was dangerous to act on a disputed and uncorroborated police confession, it may be necessary to do so in some cases to avoid a miscarriage of justice. In that case Brennan J explained:
Trial judges give warnings to juries in many situations to guard against perceptible risks of justice miscarrying. …A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury’s function. In the majority of cases the assessment of the evidence can be left to the jury’s experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt. A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight.[46]
[45] Carr v The Queen (1988) 165 CLR 314.
[46] Carr v The Queen (1988) 165 CLR 314 at 324-5; see also Bromley v R (1986) 161 CLR 315 at 324, per Brennan J.
The warning suggested in that case is intended to address the risk that a jury may give more weight to the evidence of an individual police officer because of the reputation of police generally, when judicial experience suggested a need for at least some caution. However, even in those cases, the common law did not develop to the point of refusing to allow the prosecutions to proceed where the admission is not independently proved, even if it is a critical part of the prosecution case. Similarly, where a prosecution case relies on the evidence of a witness who is or has been delusional, a jury may need to be warned to scrutinise that witness’ evidence,[47] but it is quite another matter to refuse to admit the evidence or to stay the prosecution altogether.
[47] Bromley v R (1986) 161 CLR 315.
Where evidence has been lost or destroyed and a properly directed and warned jury (or judicial officer) is left in some doubt about the guilt of the accused and acquits, no problem arises. In those cases where findings of fact are made in the prosecutor’s favour notwithstanding the loss of the evidence as a general rule the public can still have confidence in the court’s verdict, because of the substantive and procedural rules of the common law to which I have referred. In particular, it must generally be accepted that the jury (or judicial officer) will give the fact that evidence is not available the proper weight it deserves in all the circumstances of the case.
Exceptionally, there may be cases where an unacceptable risk of miscarriage subsists despite the protections to which I have referred.
There is a miscarriage of justice when a person is convicted on evidence that cannot prove his guilt beyond reasonable doubt.
I appreciate that the word “unacceptable” must be given some objective content, because a judicial assessment on anything less than all of the possibly available evidence will always carry with it a risk of error in a general sense. It cannot be the law that a trial must be stayed whenever some evidence that might, theoretically, have raised a doubt for one reason or another cannot be produced. In my view the following considerations will determine whether a risk of miscarriage is acceptable or not.
Firstly, there must be a consideration of the nature and strength of the evidence that will be called. That proposition follows, I think, from the fact that the power to stay proceedings is a discretionary power that must of necessity focus on the risk that the proceedings will result in a miscarriage should they be allowed to continue. If there is no feature of the evidence that creates any difficulty in properly weighing its probative value, then the case for a stay will be weak. Where the combined weight of the evidence is great it will be particularly difficult to say that there is an unacceptable risk of miscarriage. That will be even more so where there is strong circumstantial evidence which is independent of the evidence that has been lost. If evidence which is independent and unconnected to the lost evidence is strongly probative of guilt then it must follow that there is very little risk of a miscarriage of justice. I accept that there is an element of circularity involved in this proposition. The complaint made on a stay application where evidence has been lost is that the prosecution case only appears to be strong because the defendant has been denied the capacity to test its strength by the very failure of the prosecution or the police to obtain or preserve all of the material evidence. However, I suspect that the paradox is more apparent than real. On an application for a stay the Court does not determine whether the prosecution evidence has proved the offence beyond reasonable doubt. Rather, it is engaged in a form of risk assessment. The question is whether, if the Court were to convict the defendant, the conviction would be attended by an unacceptable or substantial risk of miscarriage. To my mind it is possible for a court to make a sound assessment about the degree of risk of a mistaken assessment of the weight of the evidence that is received in the absence of the lost evidence. If the relevant consideration is recast in that way there is no logical invalidity in the approach of the authorities.
Secondly, and this follows I think from my first proposition, the degree of risk that is acceptable may vary from case to case. Much may depend on the nature of the offence and the reasons for the loss of the evidence. A prosecution for an offence based on apparently probative evidence, might nonetheless be stayed if the destruction of other evidence by the prosecuting authority or its investigators has unnecessarily compromised the procedural right of the accused to disclosure of all material evidence. It is difficult to explain precisely why that is so. I suspect it is because satisfaction of guilt beyond reasonable doubt is a practical matter and is affected by the degree to which police have properly investigated a matter. That is more obviously so where the conduct is deliberate and criminal or taken in bad faith. In those cases the Bunning v Cross discretion might also have a part to play. It follows however that the loss of evidence caused by persons who are unconnected to the police investigation is of little, if any, weight if there is no special difficulty in the judicial assessment of that evidence which is adduced. Equally, where there is no particular difficulty in weighing the evidence on which the prosecution does rely, a failure by police investigators to obtain evidence is of limited significance unless the failure is accompanied by a disregard of the suspect’s interest in a full disclosure of all material information.
Thirdly, the public interest that prosecutions for serious offences that have at least a reasonable evidential foundation are brought to trial is a very important consideration. It is the very constitutional function of courts to do justice by exercising their jurisdiction. In all but the most exceptional of circumstances justice will be denied when courts close their doors to a supplicant.[48] Exceptional circumstances will only exist where the judicial function cannot be acceptably performed.[49]
[48] Duncan v Crews (2001) 161 FLR 250 at 257-8, [49]; Jago v District Court (NSW) (1989) 168 CLR 23 at 47; Williams v Spautz (1992) 174 CLR 509 at 519; Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256 at 303-4, [158]-[161] per Kirby J.
[49] Duncan v Crews (2001) 161 FLR 250 at 258, [54] per Greg James J.
There is very little controversy in the cases that the considerations that I have just identified are relevant matters on an application to stay criminal proceedings for an abuse of process. The more controversial issue is the identification of an organising principle around which those matters must be considered. In my view the lost opportunity of an accused to present evidence or test the prosecution case should not be considered in isolation and is certainly not determinative. The critical issue is whether the court’s capacity to fairly assess the evidence which will be led has been so compromised that there is an unacceptable risk of a miscarriage of justice. Those cases will be rare and exceptional.
Prosecution of the respondent not an abuse
In this case the capacity of the Court to adjudicate on the facts has not been compromised at all. It verges on the fanciful to suggest that the identification by Ms R is mistaken when the person she has identified shares so many uncommon characteristics with the defendant. Both are Iranian and have been in Australia for the same amount of time, both wear similar glasses, both wear hearing aids, both have unusually short thumb nails, both have a similar shirt and both share the same bus between the city and Glenelg.
In this case the heavy weight of the circumstantial evidence implicating the respondent minimises the chance that the CCTV footage would have shown that the complainant’s identification was mistaken or that she fabricated the allegations around an imagined offender who shared so many of the respondent’s personal characteristics. Put in another way the absence of the CCTV footage would not cast any doubt whatsoever on the conviction of the respondent if the trial court were to accept and act on the proposed evidence.
I have concluded that it is not an abuse of the process of the Magistrates Court for the police to bring this prosecution before it. On the contrary it would bring the administration of justice into disrepute if this prosecution were not to proceed.
I allow the appeal. I remit this matter to the Magistrates Court to be heard and determined in accordance with these reasons.