Police v Sherlock - [2009] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v SHERLOCK
[2009] SASC 64
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kourakis)
12 March 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Respondent charged with shoplifting - incident giving rise to charge alleged to have occurred in a department store - security guard gave evidence that he observed respondent remove security labels from store stock and place stock into carry bag - security camera located close to the relevant area of the store - security guard gave evidence that after the respondent was apprehended, security guard viewed film recorded by camera and did not see the respondent on the film - security guard did not give police film - video footage recorded at the store at relevant time was erased as a result of re-use of film - no carelessness or misconduct on the part of the security guard - three months after the incident, respondent's solicitors requested film recorded at relevant time - film no longer existed - on the basis of the absence of film, respondent sought permanent stay of proceedings against him - extensive signage and fixtures throughout store - security guard gave evidence that due to signage and fixtures, camera's view of relevant area obscured - another security guard called by respondent confirmed that camera would have been unable to capture vision of a person in the relevant area, but gave evidence that camera might have captured momentary glimpses of the respondent as he moved through the store - Magistrate granted permanent stay - on appeal to Supreme Court, single Judge upheld decision of Magistrate - appeal to Full Court of Supreme Court - whether unfairness in a criminal trial enlivens power to grant permanent stay of proceedings on the basis of an abuse of process - if so, whether trial of respondent would be unfair as a result of absence of film - if so, whether, after taking into account all other relevant factors, a permanent stay of proceedings was justified.
HELD: appropriate to proceed on basis that a court may stay trial of a charge if trial would be unfair - concept of unfairness in this context a narrow one - no way of knowing whether film recorded something relevant - if film did record something relevant, no way of knowing whether it would have assisted prosecution or defence - absence of film does not deprive court of ability to assess evidence to be led - unfairness of relevant kind not present - even if such unfairness was present, having regard to public interest in bringing accused persons to trial, and exceptional nature of remedy, not an appropriate case for grant of a stay - appeal allowed.
Magistrates Court Act 1991 (SA) s 5, referred to.
Barton v The Queen (1980) 147 CLR 75; Sedmak v Police [2008] SASC 307; Police v Pakrou [2008] SASC 364; Penney v The Queen (1998) 72 ALJR 1316; Jago v District Court of New South Wales (1989) 168 CLR 23, applied.
Police v Sherlock [2008] SASC 294; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Williams v Spautz (1991-1992) 174 CLR 509; Subramaniam v The Queen (2004) 79 ALJR 116; R v Ulman-Naruniec (2003) 143 A Crim R 531; R (Ebrahim) v Feltham Magistrates' Court [2001] 2 Cr App R 427; R v Williams [2001] 1 Qd R 212; The Queen v Carroll (2002) 213 CLR 635, discussed.
R v NRC (No 2) (2001) 124 A Crim R 580; R v Lorkin (1996) 15 WAR 499; Ridgeway v The Queen (1994-1995) 184 CLR 19, considered.

POLICE v SHERLOCK
[2009] SASC 64
Full Court: Doyle CJ, Sulan and Kourakis JJ

DOYLE CJ: Mr Sherlock was charged with theft of a clock and a clock radio from a department store (“the store”) operated by Harris Scarfe Australia Limited (“Harris Scarfe”).
The alleged offence involved what is commonly called shoplifting.
The case came on for trial before the Magistrates Court. Counsel for Mr Sherlock indicated that he sought a permanent stay of the proceedings on the ground that film recorded by security cameras in the store, at the time of the events the subject of the charge, was no longer available to be viewed and, if appropriate, tendered in evidence. Implicit in this submission was the claim that the film would have or might have assisted Mr Sherlock in his defence of the charge.
After hearing the evidence of two prosecution witnesses, and a witness called by the defence, the Magistrate ordered a stay of the proceedings. The Magistrate found that the relevant film might have given Mr Sherlock the opportunity to support his version of events, or to cast doubt on the evidence of the key prosecution witness. The Magistrate said that there was no other way that Mr Sherlock “could have independently challenged the prosecution version of events or supported his own”. The Magistrate said that as the film was unavailable, Mr Sherlock could not receive a fair trial. On appeal, a Judge of this Court upheld that decision. The Judge agreed that what was or might have been on the film was “central” to the reliability of the key prosecution witness.
The case raises for consideration the question whether a court has power to stay a prosecution on the ground that evidentiary material that the prosecution could be expected to tender, if it was available and relevant, and that might have assisted the defence of the charge in a material way, is no longer available through no fault of either the prosecuting authority or the defendant. The case raises the further question of whether, in the particular circumstances, the Magistrate erred in finding that this was a proper case for a stay.
Proceedings in the Magistrates Court
As I have already recorded, the Magistrate decided that she should hear enough of the evidence to provide a firm footing for an assessment of the claim that the trial would be an unfair trial, having regard to the unavailability of the film recorded by the security cameras.
The prosecution case rested mainly on the evidence of Mr Bryant, a security officer employed by Harris Scarfe.
Mr Bryant gave evidence that on the day in question he was in the basement of the store, working (in plain clothes) as a security officer. He saw Mr Sherlock select a box which contained a clock from a display of items for sale. He saw Mr Sherlock “pick at” and remove from the outer surface of the box what he called an “ultra label”. An “ultra label” is a rectangular label about five centimetres by one centimetre, with a strong adhesive backing. All items for sale in the store have an ultra label stuck on them. The label contains “metal strippings” which will activate an alarm if the item to which the label is attached is taken through a security gate without the label being “deactivated” by a cashier. When an item is presented for purchase by a customer, and paid for, the cashier will ordinarily “deactivate” the label. Mr Bryant said that Mr Sherlock put the box into a bag with Harris Scarfe markings that he was carrying. I gather that the bag was of a kind provided by Harris Scarfe to purchasers of goods.
Mr Bryant said that Mr Sherlock then walked a short distance to another display and selected a box containing a clock radio, and again removed the ultra label from the box and put the box in the same bag.
Mr Bryant had a radio that enabled him to communicate with other security officers employed by Harris Scarfe.
Security cameras were installed at a number of different places in the store. The cameras operated from the time when the store opened for business to the time when it closed. They filmed events occurring in the store. The cameras could be rotated by an operator in a control room that was part of the store. The operator could also cause the cameras to record film “close up” or at a distance, by using the “zoom” function of the cameras.
The radios used by the security officers enabled communication with the control room operator as well as with other security officers.
In the control room was a monitor screen, which enabled the operator to view what was being recorded by the particular camera selected by the operator for that purpose.
Everything recorded by each camera was recorded on a “hard drive”. The events being viewed by the operator on the monitor were recorded separately.
The material on the “hard drive” was retained for two weeks, and the film or tape of what was being observed on the monitor was kept for one week.
Mr Bryant said that after he saw Mr Sherlock remove the label from the first box, he used his radio to report his observations and to call for assistance. He followed Mr Sherlock who, after taking the second box and removing the label from it, walked up a set of stairs to the ground floor of the store. Mr Bryant followed him to the ground floor, and ran out to Grenfell Street (which is on the southern side of the store) with a view to cutting Mr Sherlock off. As he did so, he saw Mr Cilento (another security officer) talking to Mr Sherlock at a door that led to a carpark. This door was, I gather, close to the doors that led to Grenfell Street.
Mr Cilento gave evidence that he received a call on his radio from the control room operator to the effect that a man with items that he had not paid for was heading towards the Grenfell Street doors. Mr Cilento went towards the doors that led to Grenfell Street where he saw a man who fitted the description that he had been given. He spoke again to the operator in the control room, who said that he was not able to observe the area where the man was, but that the description given by Mr Cilento to the operator matched the description of the man. Mr Cilento said that he saw the man go through a sensor gate into an area or foyer from which he could either move to Grenfell Street or go through a doorway to a lift which gave access to a carpark. Mr Cilento was wearing a uniform. He said that the man said words to the effect that:
You can’t take me in because I haven’t left the store yet.
A little later in his evidence he said that as he approached the man, the man said:
You can’t pinch me because I haven’t left.
The evidence of Mr Bryant and Mr Cilento was to the effect that, at their request, Mr Sherlock then went with them to the security office in the store.
The two boxes, each containing a clock, were found in Mr Sherlock’s shopping bag. Neither of them had an ultra label on it. The place where a label had been removed was indicated by “ripping” on the surface of each box. Mr Bryant did not return to the area where the clocks were on display to search for the ultra labels which he said had been removed. There is no suggestion that any other witness did this. There is no evidence about what happened to them.
Mr Bryant gave evidence that there was a security camera in the vicinity of the displays from which Mr Sherlock took the boxes. It was about 15 metres away.
However, Mr Bryant said that a floor to ceiling pillar and signs and balloons would have blocked the line of vision between this camera and the place where Mr Sherlock removed the first ultra label. He said that a lift and a screen wall would have blocked the line of vision between the camera and the place where Mr Sherlock removed the second label.
Mr Bryant said that when the police arrived, as they duly did, he went to the control room and replayed the film that recorded what the control room operator had been viewing on the monitor while the relevant events unfolded. He said that he rewound the tape and viewed it. He said that the usual practice was that if there was “video evidence” this would normally be given to the police with statements prepared by the relevant Harris Scarfe security officers.
Mr Bryant said that when he replayed the film or tape, it did not contain any observations of Mr Sherlock. When asked what the film or tape showed, he said:
A lot of the camera moving trying to look for – back and forward trying to look for the male.
He added:
A lot of moving back and forward, fixtures, looking, zooming in and out and trying to actually physically look for the person so it would have been back and forward trying to spot [the person] …
He confirmed that there were no observations on the film of Mr Sherlock.
The case proceeded on the basis that the police did not ask for a copy of the film which recorded what was being viewed on the monitor until after a request was made by Mr Sherlock’s solicitors for that film to be provided. The first request for relevant film was made about three months after the incident.
What Mr Bryant viewed was, on his evidence, the film or tape of what was displayed on the monitor screen in the control room. As I have earlier noted, images recorded by cameras that were not being used by the operator in the control room were separately stored and recorded on a “hard drive”. Mr Bryant does not appear to have viewed this material, confining himself to viewing the film or tape that recorded what the operator had seen through the monitor.
Mr Cilento gave evidence to the effect that the operator in the control room said by radio that there was a man leaving the store heading towards Grenfell Street, and that the operator gave a description of the man. Whether that description, if given by the operator, was based on observations made by the operator through the monitor in the control room, or on a description provided by radio by Mr Bryant, is unclear. Mr Bryant was not asked if he gave a description of Mr Sherlock when he sent the first radio message to the operator and to other security officers relating to his observations. The operator was not called.
There was one other witness. This was Mr Matto, who was called by counsel for Mr Sherlock. He appears to have been called mainly to give evidence, by reference to certain plans, of the position of security cameras, and of the field of vision each provided. His evidence supported the evidence of Mr Bryant to the effect that the camera referred to by Mr Bryant, that was not far from the places where Mr Sherlock selected the boxes and removed the ultra labels, could not have recorded Mr Sherlock in those places because of the obstructions referred to by Mr Bryant. But Mr Matto’s evidence left open the possibility that the camera might have recorded images of Mr Sherlock if he passed through or across a gap between the various obstructions to the line of sight of the camera. The effect of his evidence was, as I understand it, that it was possible that the camera might have recorded a momentary appearance or appearances by Mr Sherlock. Mr Matto confirmed that if a camera recorded film of a person who was to be charged with an offence, the standard procedure followed by the security officers employed by Harris Scarfe was to provide the relevant film to the police.
There was further evidence to the effect that the film was routinely reused after about one week. By the time that Mr Sherlock’s solicitors requested the film, it had been reused. Whatever had been recorded on the day in question was no longer able to be viewed.
On the evidence before the Magistrate, the evidence of Mr Bryant that Mr Sherlock had picked at and removed the ultra labels was significant evidence. The fact that Mr Sherlock had in his possession, in a Harris Scarfe shopping bag, two items from each of which the ultra label had been removed, was itself of some significance. Evidence that he removed the ultra labels would have been very telling. On the other hand, if the camera in question had recorded Mr Sherlock in the vicinity of either display from which a box was selected, and if what was recorded cast doubt on Mr Bryant’s evidence about Mr Sherlock removing the ultra labels, the film would assist the defence in a material way.
I add that evidence of the conversation between Mr Sherlock and Mr Cilento was also significant. The version of that conversation given by Mr Cilento would tend to support the prosecution case. It was put to Mr Cilento in cross-examination that before Mr Sherlock left the store he turned back on his path, almost colliding with Mr Cilento in the area immediately adjacent to the sensor gates, and that Mr Sherlock was the first to speak and said:
I’m going upstairs. I thought I was going upstairs to go and look at some more clocks. Someone told me the clocks were up on the first floor and I’ve realised I’m in the wrong place, this takes me to the car park, not to the first floor.
That evidence would tend to support a defence case that at that stage Mr Sherlock was not intending to leave the store. Mr Cilento denied that this was what happened.
It is apparent from the findings that the Magistrate made that she accepted that Mr Bryant was a truthful witness. She also appears to have accepted the substance of his evidence. She accepted that the relevant camera did not give an unobstructed view of the area where Mr Sherlock was when, according to Mr Bryant, he removed the ultra labels. She found that if Mr Sherlock was moving around while he was picking at the ultra labels, or “circling” as she put it, Mr Sherlock might have been visible and might have been recorded on film by the relevant camera. My impression from the evidence is that Mr Sherlock would only have been seen momentarily when he moved into or across a gap in the obstructions to the line of vision from the camera. The Magistrate accepted Mr Bryant’s evidence that when he viewed the film recording what was being observed through the monitor in the control room, he did not see Mr Sherlock. But the Magistrate said that Mr Cilento’s evidence that the operator gave him a description of the man in question raised “… a possible inference then that the radio operator may have seen the individual on the camera”: at [9]. The Magistrate found that the film or tape had been reused, and so whatever had been recorded on the day in question was no longer available. The Magistrate made a finding that one of the relevant tapes was still available after Mr Sherlock’s solicitors made a request for a copy of the tapes: at [7]. However, the parties agreed that this finding was an error. The appeal was argued on the basis that the relevant film was erased about two weeks after the incident in question.
The Magistrate made two findings of particular relevance to the appeal. Relying on the evidence of Mr Matto, she found at [8] that:
If a person were ‘circling’, they may be picked up by the camera.
This I take to be a reference to the possibility of a momentary appearance on the film. And at [10] the Magistrate found:
I am satisfied that the missing CCTV footage may have given the defendant the opportunity to support his version of events or to cast doubt on the inferences sought to be drawn by the prosecution.
She decided that the prosecution should be stayed. She said at [11] and [12]:
[11]I bear in mind that a stay is only given in exceptional circumstances. However, I have formed the view that the defendant is unable to get a fair trial in the absence of the CCTV footage. He and his counsel are unable to view the tape and to test Bryant’s assertion that the defendant does not appear on it. This is in contrast to his evidence that, when he viewed the tape, it was clear that the camera operator was trying to locate the defendant. I note further that Bryant only viewed the tape once whilst the defendant’s record of interview with the police was progressing.
[12]The destruction of the tape prevents the defendant’s access to it. There is no other way that the defendant could have independently challenged the prosecution version of events or supported his own. I bear in mind the cases to which I have been referred including Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police unrep Lander J S6754 2 July 1998 and CSDA v Bourke unrep [1999] SASC 154.
The appeal to a single Judge

On appeal the single Judge summarised the evidence. He appears to have accepted and to have acted on the Magistrate’s findings of fact: Police v Sherlock [2008] SASC 294 at [15]–[16]. The Judge expressed his conclusion as follows at [22]–[23]:
[22]In my view, the magistrate in the present case was correct to stay the proceedings. Although the magistrate in her reasons was of the view that Mr Bryant “appeared honest”, the nature of the defence was an attack upon the accuracy of Mr Bryant’s observations. Indeed, the magistrate drew the inference that Mr Bryant’s observations were not entirely accurate. In order to overcome the absence of the CCTV tape, the appellant sought to rely, primarily, upon the observations of Mr Bryant, who was the only witness to view the tape, as to what images were on it. Mr Bryant is the same witness who gave evidence of observing the behaviour of the respondent, which was the basis of the charge.
[23]In the sense of the trial, Mr Bryant’s reliability, both as to his observations of the respondent’s behaviour and also as to his observations of what he saw on the tape before it was destroyed, was an issue. What was on the tape was central to deciding this issue. The defence at trial were left without the means of objectively ascertaining the actions of the respondent as he appeared on the tape. I agree with the magistrate’s conclusion that in those circumstances, in the absence of the CCTV footage, the respondent was unable to receive a fair trial and that the unfairness in the trial could not be remedied by any other means.
There is one other aspect of the matter to which I will return in due course.
I agree with the Judge that the Magistrate accepted, apparently contrary to Mr Bryant’s evidence, that it was possible that the camera in question recorded the actions of Mr Sherlock at some stage when he was on the basement level of the store. However, one of the findings that the Magistrate made, and made beyond reasonable doubt, is that Mr Bryant saw Mr Sherlock “… take a clock, circle the department and proceed to pick at and remove the ultra label…”: at [7]. That finding does not sit easily with a finding that the film might have cast a doubt on the evidence of Mr Bryant.
The power to stay proceedings as an abuse of process
There is no doubt that the Magistrates Court, which by s 5 of the Magistrates Court Act 1991 (SA) is a court of record, has an implied power to stay criminal proceedings before it if they are an abuse of the Court’s process, or if the continuation of the proceedings would give rise to an abuse of process.
I propose to proceed on the basis that the power to stay proceedings as an abuse of process can extend to a case in which a prospective trial will be unfair because of the unavailability of identified evidentiary material that the prosecution could be expected to tender, if available and relevant, and that might have assisted the defence in a material way. I proceed on the basis that the main issue is whether this is a case in which the power can and should be exercised.
I use the term “evidentiary material” because there is no way of knowing whether anything material to the case was recorded on the film in question. Accordingly, it cannot be said that the case is concerned with evidence that is unavailable. It is concerned with “evidentiary material” that might or might not have been relevant.
The submission by Mr Edwardson QC, counsel for Mr Sherlock, is that the absence of the evidentiary material makes the trial of the charge of theft unfair to Mr Sherlock, the unfairness being of such a kind, or of such an extent, that the trial should be stayed.
It is not known, and cannot now be known, whether the relevant security camera recorded images of Mr Sherlock when, according to Mr Bryant, he selected the boxes in question and removed the ultra labels. All that can be said is that it is possible that the camera filmed and recorded Mr Sherlock for some of the relevant time. Having regard to the evidence about the position of the camera, there is no reason to think that the camera filmed the whole of this part of the events in question. Even if the camera filmed and recorded Mr Sherlock, the film might have supported Mr Bryant’s evidence, or it might have undermined his evidence. It might have thrown no light on the matter at all, if it recorded only a fleeting glimpse or glimpses of Mr Sherlock. So the unfairness is said to arise from the unavailability of the film (as a result of the failure to preserve it in case it was required), it now being impossible to know whether the film contained anything relevant and, if it did, it being impossible to know whether it assisted the prosecution or the defence. On the Magistrate’s findings, there is no reason to think that Mr Bryant or any other person failed to preserve the film with the intention of prejudicing Mr Sherlock’s defence. Nor can any criticism be made of the police who investigated the matter. On the material before the Court, they could have assumed that if there was relevant security film they would be informed of that, and given a copy. That was the usual practice according to Mr Matto.
Nor is there any suggestion here that the proceedings have been instituted for an improper or oppressive purpose, or frivolously or vexatiously. The use of the Court’s procedure is not oppressive, unless the unavailability of the film makes it so.
With those preliminary points in mind, I turn to the question of the scope of the power to stay proceedings as an abuse of process.
The High Court has frequently emphasised that the concept of abuse of court process does not comprise “closed categories”, and cannot and should not be exhaustively defined: see, for example, Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [9] Gleeson CJ, Gummow, Hayne and Crennan JJ. In Batistatos the majority went on to consider how the concept of abuse of process had been developed. They referred, with apparent approval, to observations by Gaudron and McHugh JJ. Those observations, set out below, appear to me to support the conclusion that the power to stay proceedings on the grounds that they would be unfair is not limited to unfairness or injustice attributable to undue delay. That question was left open in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. To so limit the power would be inconsistent with the observations that they set out. In other words, the observations to which they referred and which they adopted support the conclusion that the question left undetermined in Jago has now been determined. The majority in Batistatos said at [14]-[15]:
[14]In Ridgeway v The Queen, Gaudron J explained:
“The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.”
[15] 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.
Footnotes omitted
I have not overlooked the fact that Batistatos dealt with civil proceedings nor the fact that it was concerned with delay. A little later the majority concluded that there was no requirement that there be oppressive conduct on the part of the plaintiff and continued at [69]:
[69][A]ttention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants.
This passage also supports the conclusion that the fact that a fair trial is not possible is a basis for staying criminal proceedings, assuming of course that other matters that fall for consideration in criminal proceedings are properly taken into account. Kirby, Callinan and Heydon JJ dissented in the result. Kirby J agreed with this statement by the majority: Batistatos at [138]. Callinan and Heydon JJ did not find it necessary to deal with this aspect of the scope of the Court’s power to stay proceedings.
Another decision which indicates, to my mind, that the question unanswered in Jago has now been determined, is Williams v Spautz [1992] HCA 34; (1991-1992) 174 CLR 509. In that case it was claimed that criminal proceedings had been instituted to exert pressure on the employer of Dr Spautz in relation to wrongful dismissal proceedings brought by Dr Spautz. It was held by a majority that the proceedings had been brought for an improper purpose, were an abuse of process and should be stayed. In the course of their reasons Mason CJ, Dawson, Toohey and McHugh JJ said at 518-519:
The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair". This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.
However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.
Footnotes omitted
Brennan J agreed in the result, but did not agree with this wider statement of the powers of the Court. Deane and Gaudron JJ in dissent did not find it necessary to discuss this issue.
A further decision to the same effect is Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116. There the Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ) said at [26]-[27]:
[26]It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner, the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".
[27]Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment". Deane J in Jago posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or admissions; failure to hold committal proceedings; the absence of legal representation of an indigent person facing serious criminal proceedings; and, unreasonable delay.
Footnotes omitted
I return to the decision in Jago. This was a case concerned with delay in bringing criminal proceedings to trial. The High Court held that the trial Judge did not err in refusing to stay the proceedings. The reasons of the Court contain a detailed discussion of the scope of the power to stay proceedings as an abuse of process. The case was concerned with injustice or unfairness attributable to undue delay. Mason CJ said at 26:
This Court has not yet decided whether the power to prevent abuses of process extends to a power to prevent unfairness generally (see Barton v The Queen (1980) 147 CLR 75, at pp 96-97), although lower courts have not found difficulty with such an approach: Herron v McGregor (1986) 6 NSWLR 246, at pp 250-251; Reg v Clarkson [1987] VR 962, at pp 967-973; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685, at p 697; Clatyon v Ralphs and Manos (1987) 45 SASR 347, at p 363; Cooke v Purcell (1988) 14 NSWLR 51, at pp 63, 77. There are references to the right to a fair trial in Barton, consistent with the broader view but not decisive of the question: see per Stephen J, Murphy J, Wilson J. Gibbs ACJ and I, with whom Aickin J agreed, left the question open.
Accordingly, since Barton was decided, decisions in other courts have endorsed the proposition that, at least in cases of undue delay, the courts possess power to stay criminal proceedings in order to prevent "injustice" to the accused. … But the broader proposition, so far not decisively supported by authority, is that the power exists generally, and not only where the complaint is one of undue delay. It is not necessary in this case to address that more general issue. …
Although the wider question did not have to be decided in Jago, the statements by the members of the Court about the scope of the power to stay proceedings provide guidance that binds this Court in the exercise of that power, assuming as I do that the power extends to what Mason CJ described as “unfairness generally”.
Mason CJ considered decisions of courts in England, Canada and New Zealand. In a passage often referred to with approval in later decisions, he said (at 29-31):
The New Zealand Court of Appeal has recognized the inherent power of a superior court to stay or dismiss a prosecution for abuse of process in terms consistent with the view of Lord Devlin, in Moevao v Department of Labour. While the members of the Court focused upon the concept of abuse of process, it is clear that they took a wide view of what might constitute such an abuse. The approach is best exemplified in the judgment of Richardson J, who stated:
"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.
For the reasons given, I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an "abuse of process", I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated:
"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."
The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg v Derby Crown Court: Ex Parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.
Footnotes omitted
Mason CJ also made it plain that the test of fairness was not one confined to the interests of the accused person. He said at 33:
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. …
Footnotes omitted

Later in his reasons Mason CJ said that he agreed with the following statement by Wilson J in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111:
I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is 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. A defect of this kind will ordinarily reside in the nature and content of the charge or charges contained in a particular indictment in the circumstances of the case. I find it more difficult to conceive of an abuse of process arising in cases based, not on a criticism of the charge itself, but on procedures that either have been or are proposed to be followed. …
Brennan J agreed in the result, but took a narrower approach to the Court’s power. He adhered to this view in a number of later decisions. Although his approach to the scope of the Court’s power was a minority view, he commented on obstacles to a fair trial, using that term in its general sense. He said at 47:
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation), absence of competent representation (McInnis v The Queen; MacPherson v The Queen), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. …
Footnotes omitted
Although his approach to the power was a minority one, in my respectful opinion, as I will explain later, he rightly observed that usually unfairness of the kind to which he referred, arising from circumstances outside the Court’s control, will not make a trial unfair in the required sense.
Deane J was one member of the Court who dealt in a general way with the concept of unfairness affecting a trial, such unfairness being sufficient to support a decision to stay the trial. He said at 56-57:
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's "right to a fair trial". I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable "right" since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.
Toohey J, like the other members of the Court, focussed on the issue of prejudice attributable to delay. But he treated this as an aspect of what he called the right to a fair trial. He said at 71-72:
The remedy of a stay assumes significance when an accused's complaint is that, by reason of delay, he has been prejudiced in his defence. To bring the matter to trial does not assist the accused in those circumstances. At the same time, it may be difficult to justify a dismissal of the charge if the Crown is ready to proceed. A stay may then be appropriate. But, that is an aspect of the right to a fair trial, a right which is unquestioned, not of an independent right to a speedy trial. "There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial": Gibbs ACJ and Mason J in Barton v The Queen. See also Connelly v Director of Public Prosecutions.
In Barton, abuse of process and fair trial are linked by Gibbs ACJ and Mason J as they are by Wilson J, though Wilson J identifies abuse of process as generally relating to the charge itself and fairness as going to procedures that have been followed or are proposed to be followed. It is consistent with authority and principle to regard each notion as part of the responsibility of the courts to see that justice is done to the parties and to the wider community, ensuring that the appropriate remedy is applied in the particular case. Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.
Footnote omitted
Gaudron J also dealt with the question of prejudice resulting from delay as an aspect of the entitlement of an accused person to a fair trial according to law. She said at 75:
When, in the words of Wilson J in Barton, there is "a fundamental defect which goes to the root of [a criminal] 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", an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands.
Footnote omitted
She went on to make a number of significant points. They qualify the apparent width of the passage set out above. She emphasised that the power to grant a stay is a power to refuse to exercise jurisdiction, and so has to be exercised in light of the principle that the conferral of jurisdiction on a court imports the prima facie right of a litigant to invoke that jurisdiction: at 76. Another important qualification was that the question of whether an indictment should be presented involves the exercise of an independent discretion inhering in prosecution authorities: at 77. She referred to the powers that may be exercised by a trial judge to ensure a fair trial including the power, for example, to exclude evidence if its admission would operate unfairly against the accused: at 77. She rejected the notion that “presumptive prejudice” attributable to delay was a sufficient basis for a stay. She explained that she was referring to “… general, but unspecified, prejudice or damage, including, it would seem, prejudice in the conduct of the defence by reason of staleness of evidence”: at 78.
As Mason CJ said, it was not necessary to decide in that case whether the power to prevent abuse of process extended to a power to prevent unfairness generally. But, as the above extracts demonstrate, the statements of principle by the members of the High Court, other than Brennan J, are so expressed as to be capable of that wider application. In saying that one must always bear in mind, however, the cautionary observations of Mason CJ and those of Gaudron J.
Although the wider question was not decided in Jago, my conclusion is that since then, the wider view of the power has been embraced by the High Court. It is for that reason that I consider that it is appropriate for this Court to proceed on that basis.
If I am wrong in so concluding, there is another reason why, subject to correction by the High Court, it is appropriate for this Court to proceed on that basis.
First, as Mason CJ noted in the passage set out above, a number of State courts have taken the wider approach.
In this State, the Full Court, sitting as the Court of Criminal Appeal, took the wider approach in R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531. It was not suggested in argument that in so doing the Court had erred. In the interests of consistency this Court should take the same approach.
In Ulman-Naruniec, Bleby J said at [15]:
[15]As to whether or not a permanent stay of the proceedings should be granted, it is not merely a matter of asking whether or not the accused can now have a fair trial. Unfairness to an accused is but one aspect of whether an abuse of process is brought about by the continuation of prosecution proceedings. Furthermore, unfairness comes about in a variety of ways and in varying degrees. Merely because a trial may be described as being "unfair" for one particular reason does not necessarily require that it be stayed as an abuse of process. There will often be other means of rectifying the unfairness.
He then referred to a number of passages from the reasons of the High Court in Jago. He concluded at [24]:
[24] It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the Judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court, and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
He then went on to consider the particular circumstances of the case. Besanko J took the same approach: at [70]-[73].
Sulan J dissented in the result, but not, as I understand his reasons, on the relevant principles. In the course of his reasons he gave careful consideration to the prosecution duty of disclosure, and found that that duty had not been discharged: at [146]. He went on to say:
[146]The failure of a prosecuting authority to discharge duties fundamental to an accused receiving a fair trial is a matter of grave concern. The integrity of the criminal justice system is dependent upon those who prosecute discharging their duty. Trials cannot be regarded as fair unless prosecuting authorities are vigilant about discharging those duties. It does not follow that every failure on the part of the prosecuting authority to make full disclosure will result in a miscarriage of justice. No system is perfect. Not every investigation or trial can be perfect. In any system which relies upon human beings, errors will occur. There are, however, circumstances in which the failure to discharge a party's obligations are so serious that the court will intervene to protect an abuse of its processes. There will be occasions, although rare, in which the court will decide to order a stay or to set aside a conviction, if the conduct of the prosecution has been such as to cause prejudice to the accused and the court concludes there cannot be a fair trial.
Later in his reasons he considered High Court authority bearing on the scope of the power to stay proceedings, and as I have already noted, took the same approach in principle as was taken by the other members of the Court. He approached the matter on the basis that there had been a breach by the prosecution of its duty to disclose. He said at [209]-[212]:
[209]I agree with the DPP's submission that the discretion to order a permanent stay should not be exercised to punish the prosecution. However, the conduct of the prosecution is a relevant factor in determining whether an accused can receive a fair trial. A court may conclude that it can have little or no confidence that the prosecution will be conducted in the future so as to ensure a fair trial on the basis of previous prosecutorial conduct. In those circumstances, the continuation of the prosecution will amount to an abuse of the court process. In that respect, past conduct is relevant.
[210]I accept that it is not always possible to achieve a perfect trial. There will be occasions when material which may be relevant to the trial has been lost or destroyed. That alone will not justify the court preventing the prosecution from proceeding. There may be circumstances in which the loss of relevant material may be so significant that a fair trial is impossible. Then the court may exercise its discretion to stay the trial.
[211]In this case, the prosecution failed to disclose relevant material in the first and second trials and in the third trial prior to the second voir dire hearing. …
[212]There is material which may have potential relevance to the accused which has now been lost, or is no longer available. The material includes the tape recording of the Dziki interview, the diaries of Officer Clements and the documentation which was seized from Dziki's house and then returned to her.
He then took into account the delay that had occurred, the fact that there had been two trials and one appeal, the fact that other material relevant to the defence case might have been lost, and concluded that a stay should be granted.
In recent times other State Courts have taken the same approach to the power to stay proceedings: see, for example, R v Williams [2001] QCA 324; [2001] 1 QR 212 at 215-216; R v NRC (No 2) [2001] VSCA 210; (2001) 124 A Crim R 580 at [1], [26]-[27], and at [55]; R v Lorkin (1996) 15 WAR 499 at 508-509, at 522 and at 531-533.
The English Courts have taken a similar approach. They have drawn a distinction which will sometimes be helpful. It is the distinction between cases in which the trial cannot be fair, and cases in which it would be unfair for the defendant to be tried. The latter category comprises cases in which the prosecution is pursued for an improper or ulterior purpose, and cases in which the prosecutor has been guilty of serious misconduct. The position in England is summarised in R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130; [2001] 2 Cr App R 427 at [18]-[20]:
[18]The two categories of cases in which the power to stay proceedings for abuse of process may be invoked in this area of the court's jurisdiction are (i) cases where the court concludes that the defendant cannot receive a fair trial, and (ii) cases where it concludes that it would be unfair for the defendant to be tried. We derive these two categories from the judgment of Neill L.J. in Beckford [1996] 1 Cr.App.R. 94 at p. 101. He observed that in some cases these categories may overlap. There may, of course, be other situations in which a court is entitled to protect its own process from abuse, for example where it considers that proceedings brought by a private prosecutor are vexatious (see Belmarsh Magistrates' Court, ex p. Watts [1999] 2 Cr.App.R. 188), but we are not here attempting to carry out an exhaustive review of this jurisdiction.
[19]We are not at present concerned with the second of these two categories (which we will call "Category 2" cases), in which a court is not prepared to allow a prosecution to proceed because it is not being pursued in good faith, or because the prosecutors have been guilty of such serious misbehaviour that they should not be allowed to benefit from it to the defendant's detriment. In some of these cases it is this court, rather than any lower court, which possesses the requisite jurisdiction (see ex p. Watts, per Buxton L.J. at p. 195B-D).
[20]In these cases the question is not so much whether the defendant can be fairly tried, but rather whether for some reason connected with the prosecutors' conduct it would be unfair to him if the court were to permit them to proceed at all. The court's inquiry is directed more to the prosecutors' behaviour than to the fairness of any eventual trial. …
In this decision, consistently with Australian authority, the divisional court emphasised that the power to stay criminal proceedings as an abuse of process is to be invoked only in exceptional circumstances.
The meaning of a fair trial
It is one thing to say that a court may stay the trial of a charge if that trial would be unfair. It is another thing to apply the general proposition to a particular case.
First of all, the exceptional nature of the remedy must be borne in mind. Ordinarily, when a court’s jurisdiction is invoked, that jurisdiction must be exercised. Second, it is not a court’s function to intrude upon the independent discretion of those State officials who have the responsibility to decide whether or not a person should be prosecuted. The power to stay proceedings cannot be used as a disguised or indirect means of stopping the prosecution because the Court considers that the bringing of the prosecution is, in a general sense, harsh or unfair. Moreover, as is emphasised in the authorities, the power to stay proceedings is exercised to prevent unfairness that amounts to injustice. In some cases the power will be exercised because of a risk that a trial will be unfair. But particular care is called for when the Court is asked to stay proceedings, not because they can be shown to be unfair, but because of a risk that they will be unfair to the accused. Finally, the Court must balance the right of the accused to a fair trial, and the public interest in the bringing to trial of a person charged with an offence and the question of innocence or guilt being decided. The decision to grant or to refuse a stay of proceedings is not to be made solely from the point of view of the accused. The public interest must also be considered.
For these reasons, when asked to stay proceedings, a court is not by any means concerned solely with the question of whether the trial will be fair.
There is a further general point that should be made because of the indefinite or indeterminate scope of the concept of a fair trial. As Gaudron J pointed out in Ridgeway v The Queen [1995] HCA 66; (1994-1995) 184 CLR 19 (the relevant passage from her reasons was cited in Batistatos and is set out above) the concept of an abuse of process cannot be restricted to “defined and closed categories”. Equally, there can be no hard and fast definition of what is or is not a fair trial.
But ordinarily, as the authorities emphasise, a fair trial is a trial according to law. That is what a court undertakes, and that is what a court should provide. In the course of a trial according to law the court will, of course, apply the relevant law, and the court will exercise such powers as it has to ensure that the trial is fair. So the notion underlying a fair trial is not that of a trial which the casual observer would say was fair, meaning that the accused could not have been better placed than the accused in fact was at the trial, or meaning that in all respects it was an even contest. To many members of the community, a trial might seem unfair because one party is represented by experienced counsel, and the other by inexperienced counsel. Many members of the community might think it unfair if a witness upon whom the defence relies dies before trial, and that witness’s testimony becomes unavailable. But the legal concept of a fair trial is a much narrower one. It is, as I have explained, a trial according to law, the court exercising such powers as it has to make the trial fair. It can only be in exceptional circumstances that a court can decide that, despite the trial proceeding according to law, and despite the court exercising those powers that it has to ensure a fair trial, nevertheless the trial cannot be a fair trial, and that such unfairness will call for the proceedings to be stayed. In that context it is worth repeating the often cited observation by Wilson J in Barton at 111:
I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is 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.

A court asked to exercise its power to stay proceedings must bear in mind its duty to hear the proceedings according to law. It is not the function of a court to try to achieve some kind of equality as between the parties, or some kind of fairness in the broadest sense referred to above. Earlier in my reasons I set out some observations by Brennan J in Jago, commenting on obstacles to a fair trial that courts encounter and with which they must deal. To the extent that those comments reflect how a court of trial must proceed when faced by general unfairness, I respectfully adopt what his Honour said. In Sedmak v Police [2008] SASC 307 I had cause to consider this matter, and said at [28]-[29]:
[28]A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which it is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party might have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court: see Jago at 49-50 Brennan J.
[29]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.
I remain of that view.
I also agree respectfully with comments made by Kourakis J in Police v Pakrou [2008] SASC 364, another case in which film taken by a security camera was no longer available at trial. In the course of a detailed consideration of the cases, and of the relevant principles, Kourakis J said:
[60]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. …
[61]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.
[62]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. …
…
[68]Exceptionally, there may be cases where an unacceptable risk of miscarriage subsists despite the protections to which I have referred.
…
[70]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.
[71]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.
[72]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.
[73]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. Exceptional circumstances will only exist where the judicial function cannot be acceptably performed.
[74]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.
Footnotes omitted
There is another aspect of this case that warrants comment. Underlying the submission that the prosecution should be stayed is, I consider, an assumption that the investigation into the alleged offence was deficient. Although not made explicit, the underlying assumption in the submission by Mr Edwardson is that the investigating police officers should have secured the film recorded by the relevant camera, and that the trial will be unfair because they failed to do so.
In Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316 the appellant argued that his conviction should be set aside because there had been a miscarriage of justice. This submission was in turn founded on a criticism of the adequacy of the police investigation of the offence. The criticisms included the failure to retain certain items connected with the offence, which items might have thrown light on the events in question, and the failure to carry out certain scientific tests.
The other four members of the Court agreed with the reasons of Callinan J: Penney at [1]-[4]. Callinan J linked the concept of a miscarriage of justice, as a ground of appeal, with the concept of a fair trial as considered in Jago. He said at [14], referring to the grounds of appeal:
[14]The first two grounds were also linked by the appellant in argument with the last ground. It was put that unfairness and incompetence in the process of investigation by the police, for those reasons alone, would render the verdict unsafe and unsatisfactory: or, to use the language of s 353 of the Criminal Law Consolidation Act 1935 (SA), would be productive of a miscarriage of justice entitling the appellant to an acquittal or a retrial.
Footnote omitted
After referring to the criticisms of the police investigation, and agreeing that it was unsatisfactory in some respects, he said at [18]:
[18]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.”
Footnotes omitted
He then went on to refer to the reasons of Mason CJ and Deane J in Jago, and then said at [22]:
[22]Nothing that was done or omitted to be done in this case constituted unfairness of the kind of which Deane J in Jago v District Court (NSW) gave examples:
“Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (eg adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one."
Footnote omitted
Similarly, in R v Williams at [7], the Court of Appeal said:
[7]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 up 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.
Footnote omitted
Application of the principles to the facts
Some would say that it is unfair that the trial of a charge should proceed without Mr Sherlock being afforded the opportunity to view the film in question and, if it assists his case in some way, to make use of it in evidence. That opinion must rest on an assumption that a trial is unfair if evidence that is possibly relevant is not available to the accused in criminal proceedings, for the accused to use as he or she sees fit. For reasons that I have indicated, unfairness in that broad sense is not relevant. The conduct of court proceedings, including criminal proceedings, can be affected by a variety of circumstances that result in material that is or might be relevant not being available to an accused person. It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities.
It cannot be said in this case, nor did Mr Edwardson argue, that Mr Bryant had been guilty of any misconduct. On the Magistrate’s findings it is possible that, by mistake, he failed to see something relevant on the film, or failed to view all relevant film. Any such mistake was an innocent mistake. In saying this I do not assume that a finding of carelessness or misconduct on his part would necessarily lead to a conclusion that the proceedings should be stayed.
In the present case there is no basis for criticising the investigation of the offence by the police. Having regard to the evidence of Mr Matto, and that of Mr Bryant, the investigating police could reasonably have assumed that any relevant film would have been provided to them.
It might be said that the police investigation was incomplete or deficient, even though the investigating officers are not to be criticised. It might be said, with the benefit of hindsight, that they should have insisted on being given all film relating to the relevant time, so that they could decide whether the film was relevant or not. I do not agree that this criticism can be made. But even if it can be said that the investigation was incomplete or deficient, for the reasons given by Callinan J in Penney I consider that such inadequacy in the investigation of the offence cannot itself provide a basis for a stay.
It cannot be said that the police, as the prosecuting authority, have failed to comply with the prosecutor’s duty of disclosure.
Next, it has to be borne in mind that the most that can be said about the missing film is that it might have recorded something relevant to the case. There is no way of knowing if it did. If the film recorded something relevant, the material might have assisted the prosecution, it might have assisted the defence, or it might have been neutral. That is the most that can be said.
Mr Edwardson rightly made the point that Mr Bryant’s reliability, and in particular his evidence that Mr Sherlock removed the ultra labels, is crucial to the prosecution case. The missing film is the one piece of objective or independent evidentiary material that might have enabled the defence to challenge Mr Bryant’s reliability.
But as against that it must be remembered that all one can say is that the missing film might have assisted either party.
Bearing that last point in mind, and remembering that courts must routinely decide cases on less than all of the potentially relevant evidence, it is not apparent to me how it can be said that the trial will be unfair because of the circumstance that there is a possibility that evidentiary material favourable to a defence case was not obtained and retained.
I return to the matters canvassed by the members of the High Court in Jago. I refer here to their treatment of the concept of a fair trial, and to the circumstances in which a trial should be stayed because it will be unfair.
I accept that there is no power available to the Magistrate trying the case which can redress completely the possibility that the defendant has been disadvantaged by the failure to retain the film. This is not a case, for example, in which it would be appropriate to exclude prosecution evidence because its reception would be unfair to the accused. However this is a case in which the procedural protection afforded by the criminal onus of proof is significant. The Magistrate will, necessarily, bear in mind when deciding if guilt is proved beyond reasonable doubt that he or she does not have the benefit of viewing the film. What would be gained by viewing the film cannot be known. The most that can be said is that there is a possibility that the material would have assisted the defence.
The missing evidentiary material does not deprive the court of the ability to assess the evidence that will be led. The Magistrate, as magistrates routinely do, will assess Mr Bryant and Mr Sherlock (if he gives evidence) in the light of all of the evidence. The film might have helped the Magistrate make that assessment. But without the film the Magistrate can decide the case in the manner that courts routinely do.
Bearing these things in mind, and to use the words of Wilson J in Barton, I cannot identify “a fundamental defect which goes to the root of the trial”. I cannot find anything oppressive in contemplating the likely course of the trial. There is nothing vexatious or oppressive in the conduct of the police in deciding to prosecute, nor did Mr Edwardson suggest that there was. The circumstance relied on by Mr Edwardson, the loss of possibly material evidence, is the kind of thing that happens not uncommonly. This is not even a case of “presumptive prejudice”, to use an expression used by Gaudron J in Jago at 78. It is a case of possible prejudice. It is equally possible that the prosecution case has been prejudiced.

For these reasons, I do not consider that unfairness of the kind that might enliven the power to stay proceedings is present.
Even if I am wrong in that, it would still be necessary to weigh the public interest in the court trying the charge, and also to take into account the exceptional nature of the remedy of a stay. Even if it could be said that there was some relevant unfairness here, in my opinion that unfairness is not sufficient to justify a stay of the proceedings.
Applying the approach taken in Ebrahim, it cannot be said that it is unfair that Mr Sherlock be tried. Nor can it be said that he cannot receive a fair trial.
I respectfully consider that the Magistrate and the single Judge erred.
Each of them has invoked a much wider notion of unfairness than can be justified by the authorities. The premise underlying their decision that the proceedings should be stayed appears to be that the loss of a chance (to use an expression from another context) to adduce favourable evidence, or the possibility that the missing film would assist the defence, is sufficient to characterise the proceedings as unfair, and to justify a stay. In my respectful opinion, as I have said, that is a concept of unfairness which goes beyond what the authorities permit. Indeed, in my opinion, when the circumstances are properly considered there is no relevant unfairness at all.
In The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635 at [73] Gaudron and Gummow JJ said:
[73]The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.
Footnote omitted
I consider that the Magistrate and the single Judge have acted on a wrong principle, because each has invoked a concept of unfairness that cannot be supported. For these reasons the appeal should be allowed.
I referred earlier to the circumstance that the Magistrate was able to and did find that Mr Sherlock had removed one of the ultra labels. It was not necessary for the Magistrate to make that finding when deciding whether the proceedings should be stayed. But the fact that the Magistrate made the finding, despite the missing evidentiary material, does not sit easily with her conclusion that the trial would be unfair.
Conclusion
Some decisions by single Judges of this Court, to which we were referred in argument, appear to me to invoke too wide a concept of unfairness, and to give insufficient weight to the restraining factors identified by the High Court in Jago in particular.
It is not necessary to refer to those decisions individually. In the end, each of them turns on the facts of the particular case. They are referred to in my reasons in Sedmak and in the reasons of Kourakis J in Pakrou.
It will only be in exceptional circumstances that the unavailability of evidentiary material that might assist the defendant in criminal proceedings, there being no misconduct by the prosecution (or those for whom it is responsible), and no breach of the obligation of disclosure borne by the prosecution, will support a conclusion that the proceedings are unfair, let alone a conclusion that they should be stayed.
I would allow the appeal. I would set aside the decision of the single Judge dismissing the appeal against the Magistrate’s decision. I would order that an order be substituted allowing the appeal to this Court, setting aside the order by the Magistrate that the proceedings be stayed, and remitting the proceedings for further hearing and determination by the Magistrates Court.
Bearing in mind the finding by the Magistrate that Mr Sherlock removed the ultra label, I leave it for the Magistrate to determine, in the light of submissions to her, whether or not she should hear the matter, or whether the trial should begin afresh before another Magistrate.
SULAN J: I agree with the reasons of the Chief Justice. I would allow the appeal. I agree with the orders proposed by the Chief Justice.
KOURAKIS J: I would allow the appeal. I agree with the orders proposed by the Chief Justice. I also agree with the reasons of the Chief Justice save for one matter to which I will shortly refer. I add the following observations.
Although the concept of abuse of process cannot be restricted to “defined and closed categories”, it appears to me that there is some utility in the taxonomy that the English Courts have adopted. The first class is identified by reference to the concept of an unfair trial, in the sense that because of one or more features of the procedure adopted or the evidence proffered, the resulting judgment will necessarily be unsafe or unsatisfactory. Cases where the evidence relied on by the prosecution is insusceptible of rational or safe forensic evaluation, whether because of delay or any other cause, are obvious examples. It may be that if a stay is granted in such cases it is because it is an abuse of process to bring an action that is bound to fail. In any event, before a case is stayed on the ground that the trial cannot be fair, due regard must be given to the availability of an appeal in which a conviction unfairly obtained can be quashed.
The second class is identified by reference to the fairness in commencing and maintaining the prosecution itself. It can readily be accepted that it would be unfair to try a defendant where the prosecution has acted improperly. Prosecutions brought to harass, or for other extraneous reasons, are the most obvious examples. The deliberate destruction of evidence and the concealment of the names of material witnesses are other examples. Moreover, if a conviction is overturned because misconduct of this kind is only discovered after verdict, it may be, subject to a consideration of the wider public interest, an abuse to try the accused a second time, even if the relevant material would be available at the subsequent trial.[1] The concept of impropriety in this context can only be elaborated over time and in the context of standards that I acknowledge may evolve. However, it would seem to me to necessarily involve conduct engaged in by the prosecution or persons closely associated with it, accompanied by an appreciation that that conduct was likely to materially compromise the operation of common law or statutory procedural rules designed to provide an accused with a fair trial.
[1] Cf R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531.
In the absence of those elements, there would not appear to be a sufficient connection between the conduct complained of and the judicial process to enliven the courts inherent powers to protect that process. For that reason, and this is the qualification to which I earlier referred, I would have to be persuaded that the common law recognises a mere failure by the police to collect and retain readily available evidence as a sufficient ground for a stay in the absence of impropriety. If it were to be accepted as a reason for concluding that a trial would be unfair it would only be, as the Chief Justice explains, in exceptional circumstances that the order would be made.