Police v WELLS - [2015] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WELLS
[2015] SASC 184
Judgment of The Honourable Justice Vanstone
27 November 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - PROCEDURE - PROSECUTION - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
Prosecution appeal against an order of a magistrate permanently staying proceedings - whether magistrate erred in permanently staying proceedings - whether prosecution failed to meet disclosure obligations - whether prosecution should have been directed to undertake further enquiries - whether absence of further materials precluded a fair trial.
Held: appeal allowed. The trial should not have been stayed. At issue was not disclosure but the failure of the police to obtain further statements in accordance with the magistrate's orders. Those orders should not have been made.
Criminal Law Consolidation Act 1935 (SA) s 56(1), s 286; Magistrates Court Act 1991 (SA) s 20; Summary Procedure Act 1921 (SA) Part 5 Division 2, referred to.
Police v Pakrou (2008) 103 SASR 124; Rona v District Court (SA) (1995) 63 SASR 223, applied.
AJ v The Queen [2011] VSCA 215; R v Garafalo [1999] 2 VR 625, distinguished.
R v Keogh [No 2] [2015] SASC 180, not followed.
Carter v Hayes (1994) 61 SASR 451; Penney v The Queen (1998) 72 ALJR 1316; R v K (1991) 161 LSJS 135, discussed.
Police v Sherlock (2009) 103 SASR 147; R v Spiteri (2004) 61 NSWLR 369; R v Williams [2001] 1 Qd R 212; Sedmak v Police [2008] SASC 307, considered.

POLICE v WELLS
[2015] SASC 184
Magistrates Appeal
Criminal

VANSTONE J: The police appeal against an order of a magistrate permanently staying proceedings.
The respondent was charged, on information dated 21 August 2014, with one count of indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The offence was said to have occurred on 8 February 2014 at the “Envy” nightclub, which forms part of the Bridgeway Hotel in Pooraka. The respondent was alleged to have touched a young woman, X, on the breasts as she was standing between the dance floor and the bar. X was 19 years old at the time. She was known to the respondent as the daughter of one of his close friends. After the incident X and her companion, Y, alerted hotel security staff, who in turn reported the incident to police. The police officers, who had attended at the hotel that evening in relation to an unrelated matter, took statements from both X and Y.
Prior to the trial commencing, an application was made by counsel for the respondent for a permanent stay of the proceedings. It was asserted that there had been ongoing inadequate disclosure of relevant material by the prosecution. The gravamen of the respondent’s complaint was that the prosecution had failed to heed a number of requests and court orders for the disclosure of various items, including closed circuit television (CCTV) footage from the night of the incident, statements from hotel security staff and other potential witnesses, and information regarding an informal photo identification procedure subsequently arranged by police. Upon hearing submissions from counsel, the magistrate granted the respondent’s application for a permanent stay.
By notice of appeal filed on 17 July 2015, the appellant challenges the magistrate’s decision to permanently stay the proceedings. The appellant contends that the decision constitutes an error of law. The appellant seeks orders allowing the appeal, setting aside the permanent stay, and remitting the matter to the Magistrates Court for trial.
Background
I set out a brief chronology of this matter. The respondent was arrested and charged with indecent assault on 12 July 2014. The matter first came before the Magistrates Court on 25 August 2014. There were further mentions on 22 September and 21 October 2014. On the latter occasion the matter was scheduled for a pre-trial conference on 14 November 2014. At that conference the charge was set down for trial on 23 April 2015 and a further pre-trial conference was scheduled for 23 January 2015. The file endorsement and Certificate of Record for the 14 November pre-trial conference indicate that Magistrate McGrath gave a direction to the prosecution to the following effect:
Prosecution prior to the next date are to provide outstanding disclosure as to the CCTV footage, other potential Crown witnesses and police notes.
The prosecution had not complied with those orders by 23 January 2015, and for that reason Magistrate Tracey awarded costs in favour of the respondent’s instructing solicitor, the Legal Services Commission, in the amount of $250. The matter was then adjourned for a further pre-trial conference on 6 March 2015. At this conference the trial date of 23 April was confirmed.
On the morning the trial was to begin counsel for the respondent, Ms Gristwood, made an application for a permanent stay of the proceedings, or alternatively an adjournment of the trial. That application was based on the prosecution’s failure to obtain and disclose relevant witness statements and CCTV footage of the incident. Ms Gristwood tendered a list of items that she had previously sought from the prosecution. Those items included statements from all police officers involved, a statement from a potential witness, referred to as “Ben”, who was said to have spoken with X and the appellant shortly before the incident, copies of the police investigation diaries, copies of police notes, CCTV footage from the hotel or a statement in relation to attempts made by police to obtain CCTV footage, and an incident report from the hotel. Magistrate Davis granted a stay of the trial until 29 June 2015. The file endorsement and Certificate of Record provide the following summary:
Ms Gristwood appears for the defendant seeking either a permanent stay or a fresh trial date in this matter. Her basis is the late provision of material, together with the non-disclosure of other material requested earlier.
His Honour notes that there have previously been two pre-trial conferences in this matter and on 23 January 2015 there was an order for costs made against prosecution as they were yet to provide outstanding documents.
There was then submissions by both parties today in relation to the relevance of material requested, availability and as to whether this affected defence’s ability to be adequately instructed in this matter.
His Honour indicates that in his view it would be useful for the prosecution to obtain a further statement from the investigating officer relating to attempts to follow up defence’s request and to consider obtaining a map or diagram roughly pointing out the area of the Bridgeway Hotel.
His Honour suggests prosecution consider obtaining a statement from the Bridgeway Hotel Management etc or responsible person as to the procedure for logging Incident Reports and the reason for no Incident Report being logged in this matter.
His Honour directs prosecution to provide CCTV footage to defence for them to consider whether they wish to play it as part of their case.
His Honour directs prosecution to obtain statements from the two security officers to include (a) whether they saw the incident (b) whether they remember the incident (c) what their duties were that night and where they were at the time of the alleged incident, in particular whether a complaint was made by the alleged victim to either of them.
On 7 May 2015 the prosecution provided to the respondent a statement of Mr Crossley, manager of the Bridgeway Hotel, and a “mud map” of the licensed area of the hotel. In his statement Mr Crossley said that on the evening of the alleged incident he had reviewed CCTV footage in the presence of police, but, as the front foyer of the hotel – where he believed the incident took place – was not shown, police did not seize any footage. He also said that no internal investigation had been undertaken by the hotel as the matter was reported directly to police.
At the 29 June hearing Ms Gristwood brought a further application for a permanent stay of the proceedings. She submitted that the incident had not occurred in the front foyer and, since the “mud map” did not indicate the locations of CCTV cameras, the further material had not advanced the matter. Ms Gristwood submitted there was potentially footage of the hotel’s carpark, dance floor, smokers’ area and nightclub entrance which could have been relevant. Ms Gristwood reiterated earlier complaints regarding inadequate disclosure. She submitted that the prosecution’s continued failure to disclose relevant material constituted an abuse of process, such as to require a permanent stay of the proceedings.
In response, the police prosecutor submitted that CCTV footage had not been provided as there was no relevant CCTV footage of the incident. Further, he said that police had been unable to obtain statements from the two security officers who had been on duty, and that the investigating officer was present and prepared to give evidence as to the attempts made. The prosecutor conceded that the failure to disclose a videotaped photographic identification procedure undertaken by police might have been an oversight, but submitted that it did not prejudice the defence case as the defendant was known to X. It was put that the case had been adequately disclosed.
Magistrate Davis then delivered ex tempore reasons for his decision to permanently stay the proceedings. The magistrate ordered that the prosecution pay costs in the sum of $4,900 plus GST to the respondent’s solicitor.
The magistrate’s reasons for ordering a stay
In his reasons the magistrate made a number of criticisms of the prosecution. He said the fact that there might have been sufficient evidence to establish the prosecution’s case through the evidence of X and Y did not relieve the prosecution of its obligations. He framed the obligation in this way:
However, prosecution’s duty to the defence was ongoing and required it to disclose all relevant or potentially relevant evidence in a timely manner, including that requested by the defence and ordered by the court. Compliance with this duty by prosecution helps to ensure a fair trial by enabling the defendant to be adequately prepared by assessing the prosecution case against it as it unfolds and taking steps to marshal a defence as required.
He further said it was wrong to take the view, as the prosecution seemed to, that the respondent’s complaints regarding disclosure were merely matters to be raised and considered at trial. The magistrate said that the essential question was whether the deficits were of such significance as to preclude a fair trial and render the proceedings an abuse of process.
The magistrate outlined the various shortcomings of the prosecution in its disclosure of material. He found the explanation provided by Mr Crossley as to the absence of an internal investigation by hotel management into the incident to be inadequate, given that X’s initial complaint was made to security staff. He found there to be insufficient information regarding the CCTV system and whether there was footage of the area where the incident occurred. He noted that there was no statement from the investigating officer as to the steps taken to obtain relevant CCTV footage. There were no statements from either of the two hotel security staff whose evidence might, he said, have been relevant and exculpatory, or from the potential witness “Ben”. The magistrate noted that disclosure of the videotaped photo identification procedure undertaken by police had only been made very recently. There was no information in the statements of either X or Y as to how much alcohol they had consumed on the night of the incident. Finally, there were no reasons supplied by the prosecution as to why X had changed her mind on a number of occasions leading up to trial as to whether she wished to proceed with the charges.
The magistrate found that it would be an abuse of process to allow the prosecution to proceed. He said:
Considering all of these matters, in light of the authorities, I find that it would be a miscarriage of justice to allow this matter to proceed.
The material requested by the defence should have been provided in a timely fashion. It was a reasonable request from the defence. The materials were those that competent counsel should have requested and if they were not to be provided then there should have been an adequate explanation, in the form of a declaration, provided well before the trial.
Courts encourage negotiations between the parties for the purposes of case flow management; to promote the understanding and exploration of issues surrounding the alleged offence; to see whether the matter can be resolved through negotiation; or, if not, whether evidence can be agreed. This in large part is facilitated by the timely provision of documents and footage sought or directed to be provided. If the prosecution had intended not to provide any of the evidence sought before the trial, that should have been squarely raised by it at one of the pre-trial conferences rather than for it to come to the trial (on two occasions now), not having provided most of the evidence or matters required or requested with little explanation.
Consequently, balancing the competing interests, I find that for this matter to proceed would be an abuse of process and I grant a permanent stay.
The arguments raised on appeal
On appeal the appellant contends that the magistrate erred by proceeding on the basis that the prosecution’s duty of disclosure extended to all relevant or potentially relevant evidence including material requested by the defence and the subject of a court order to produce. The appellant argues that such an approach is flawed in two respects. Specifically, the appellant submits that the duty of disclosure extends only to evidence that is in the prosecution’s possession, or available to it. Similarly, while the court has power to direct disclosure, it is limited to material that is within the prosecution’s possession or power. Therefore, the prosecution’s failure to provide CCTV footage and statements from the two security staff, which were unavailable, did not breach its duty of disclosure.
The appellant also submits that the magistrate erred by drawing conclusions on the adequacy of the prosecution’s disclosure without hearing any evidence. The appellant contends that the magistrate should at least have heard evidence from Mr Crossley and the investigating officer before passing judgment on the adequacy of disclosure.
The respondent contends that it was within the magistrate’s power to order disclosure in the manner he did. He contends that the failure of the prosecution to comply with those orders constituted an avoidance of its duty of disclosure such as to warrant the ordering of a stay of proceedings.
The duty to disclose
The decision of the magistrate to order a permanent stay of the proceedings was based only on the perceived breaches of the prosecution’s duty to disclose relevant material. It is necessary to examine the nature and extent of that duty.
The prosecution’s duty of disclosure derives primarily from the common law, supplemented by the committal procedure laid out by Part 5 Division 2 of the Summary Procedure Act 1921, s 286 of the Criminal Law Consolidation Act 1935 and the protections afforded by the law of evidence. In this state the approach of the Director of Public Prosecutions (DPP) to disclosure is detailed in a publicly accessible Statement of Prosecution Policy and Guidelines, which includes a section specifically addressing the topic of disclosure.
The scope of the disclosure obligations visited upon the prosecution was considered by Simpson J in the New South Wales decision of R v Spiteri (2004) 61 NSWLR 369.Her Honour said at [17]:
Although it cannot be doubted that the prosecution is under a duty to disclose to the defence relevant material in its possession, the precise scope of that duty cannot be so clearly defined. Perhaps the most succinct, and commonly adopted, statement of the obligation was that originally derived from a 1993 UK decision in a matter identified as R v Melvin and Dingle (Central Criminal Court, 20 December 1993, unreported) and adopted by the English Court of Appeal in R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478, which is in the following terms (at 752; 484):
I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:
(1) to be relevant or possibly relevant to an issue in the case;
(2)to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3)to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).
It is to be noted that the obligation is described as attaching to documents in the possession of the prosecution.
In Carter v Hayes (1994) 61 SASR 451 the plaintiff sought from police, via summons, certain documents relevant to an investigation brought against him for indecent assault. The summons was quashed by a magistrate and the plaintiff sought judicial review of that decision. The decision was upheld by a judge but reversed by the Full Court. Speaking for the Court, King CJ elucidated the important role played by disclosure in ensuring an accused receives a fair trial. He said at 456:
Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial (Clarkson v Director of Public Prosecutions [1990] VR 745 at 755), and is an aspect of the prosecution's duty to ensure that the ‘Crown case is presented with fairness to the accused’: Richardson v The Queen (1974) 131 CLR 116 at 119; R v Apostilides (1984) 154 CLR 563. Moreover the court has power to order the production to the defence of material in the prosecution’s possession or power if the interests of justice so require: R v Clarke (1930) 22 Cr App R 58; Mahadeo v The King [1936] 2 All ER 813; R v Hall (1958) 43 Cr App R 29; R v Xinaris [1955] Crim LR 437; R v Charlton [1972] VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.
The statements of King CJ in Carter were relied on by both parties on this appeal. The respondent contends that his Honour’s comments are to be seen as an endorsement of the court’s ability to order disclosure of material from the prosecution should the interests of justice so require. The appellant acknowledges that proposition, but contends that such power is confined to material within the prosecution’s “possession or power”. It is on that basis that the appellant puts forward its submission, as set out above, that the magistrate employed the wrong approach in reaching the conclusion that the prosecution had failed to meet its duty of disclosure.
It is to be noted that Carter did not deal directly with the notion of disclosure, but rather the power of the Magistrates Court to issue a summons in the nature of a subpoena duces tecum pursuant to s 20 of the Magistrates Court Act 1991. King CJ took the view that such a subpoena could be issued at any stage of criminal proceedings, including before the hearing itself, and that the magistrate’s finding to the contrary constituted an error of law. His Honour’s statements regarding disclosure were made in the context of considering whether the accused would be entitled to access the material furnished by the subpoena.

That the obligation of disclosure attaches to material in the possession of the prosecution is plain. It is necessary to consider further the statement in Carter that the obligation extends to material in the power of the prosecution. That expression is readily understood as extending to material which is in the hands of the instructing police officers, or known to them or available to them. In my view the obligation to disclose relevant material is not to be confused with any obligation to go beyond material already in the possession of the relevant police force.
In R v Keogh [No 2] [2015] SASC 180 at [54]–[64] Blue J referred to a number of cases which deal with the ambit of the obligation to disclose relevant material. In summarising these cases Blue J might be thought to be extending the ambit of the duty beyond material in the possession or power of the police. At [63] his Honour said this:
The duty of disclosure is not necessarily confined to matters known to the prosecution. In some circumstances, the prosecution has an obligation to make enquiries to discharge its duty of disclosure (A J v The Queen [2011] VSCA 215 at [22] per Weinberg and Bongiorno JJA (with whom Buchanan JA agreed)). For example, the prosecution has a duty to make reasonable enquiries about prior convictions of prosecution witnesses (R v Garofalo [1999] 2 VR 625 at 637 per Ormiston JA (with whom Charles JA agreed)) and other matters reflecting materially upon the credibility of prosecution witnesses (R v K (1991) 161 LSJS 135 at 140 per King CJ (with whom Cox and Debelle JJ agreed)).
(references integrated)
If this paragraph means that there is an obligation upon the prosecution to go out into the world and investigate matters which might reflect upon the credibility of prosecution witnesses and then to disclose those matters, then I respectfully disagree. In support of that contention Blue J referred to the Victorian cases R v Garofalo [1999] 2 VR 625 at 637 and AJ v The Queen [2011] VSCA 215 at [22]. Garofalo was concerned only with the disclosure by prosecuting counsel of any prior convictions of his witnesses which might reasonably be seen as capable of affecting their credibility. The case is authority for the proposition that counsel, or the police instructing them, are obliged to make enquiries about such prior convictions, whether by computer search or otherwise, to enable discharge of their duty of disclosure. AJ, too, was concerned with material potentially affecting the evaluation of the evidence of the central prosecution witness. There, the material was already known to the prosecutor. Reliance was placed by the Court in AJ on both Garofalo and R v K (1991) 161 LSJS 135 at 140.
R v K was a decision of King CJ, with whom Cox and Debelle JJ agreed. That case pre-dated both Spiteri and Carter. However, in my respectful opinion the case remains good law. The particular matter at issue there was whether the instructing police officers should have disclosed information in their possession which could have been relevant to the credit of a prosecution witness. K was charged for taking part in the production of cannabis. A cannabis crop was found on the property owned by one Belehris in the Riverland. Belehris was subsequently charged and convicted in connection with the crop. Later, he gave evidence against the appellants. His evidence was to the effect that the appellants had proposed to him that the crop be grown on his land and that he had agreed. The appellants denied any such arrangement. The appellants contended that the trial was unfair because the prosecution failed to disclose that, some eight years earlier, a tractor belonging to Belehris had been found at a cannabis crop site in New South Wales and police had suspected that Belehris was involved in that crop. However, no charge had been laid against him. It was agreed that while that information was known to the investigating officers it was not conveyed to the Crown prosecutor who conducted the prosecution. Therefore it was not disclosed.
In that context King CJ discussed the limits upon the nature of information which fell to be disclosed. His Honour said (at 140) that the obligation affixed to information which was “sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.” His Honour found that the information in issue was vague and tenuous and not such as to demand disclosure. But, importantly for present purposes, his Honour went on to discuss the fact that, in any event, this information was not conveyed to the Crown prosecutor. He said, at 140–141:
The fact is, moreover, that the information was not in the possession of the law officers conducting the prosecution. In many cases that would not be an answer. The prosecuting law officers might be expected to make reasonable enquiry of those instructing them as to matters potentially affecting the credibility of witnesses for the prosecution. There are limits, however, to the enquiries which prosecuting officers can be expected to make. [Reference was made to R v Collister [1955] 39 Cr App R 100]. There seems to be nothing in the present case which ought to have alerted prosecuting officers to the need to make enquiries which would have elicited this information.
It can be seen from this statement that the enquiries of which King CJ spoke in R v K were enquiries by the Crown prosecutor of the police officers instructing him. King CJ was not concerned about enquiries or investigation beyond the police force. When the ambit of the obligation to disclose relevant material is under consideration, this is of critical importance. Neither this case, nor the Victorian cases just mentioned, suggests an obligation to disclose material beyond that which is in the possession or power of prosecuting counsel or the investigating police.
The right to a fair trial
It is necessary also to consider a different question, namely what impact the absence of relevant and potentially available material will have on the trial process. The absence of such material in a criminal trial might, but will not always, lead to a permanent stay. The absence of relevant material or witnesses might be due to deficiencies in the underlying police investigation, or to other reasons.
In Penney v The Queen (1998) 72 ALJR 1316 the appellant argued that his conviction for attempted murder should be set aside as a miscarriage of justice. That submission was premised on criticisms of the adequacy of the police investigation of the offence, which included a failure to retain certain relevant items and a failure to carry out certain scientific tests. After considering those criticisms, Callinan J, with whom the other four members of the High Court agreed, said at [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.
(references omitted)
Penney’s case was applied by the Queensland Court of Appeal in R v Williams [2001] 1 Qd R 212. The Court said at [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.
(citations omitted)
The case of Police v Pakrou (2008) 103 SASR 124 is somewhat analogous to the matter at hand. This was a prosecution appeal against a magistrate’s decision to stay proceedings prior to trial. It was alleged that indecent assaults had occurred at a bus stop and on a bus. A stay was granted on the basis that CCTV footage of the incident, which was no longer available by the time of trial, may have proven exculpatory and might have been secured had police and the bus operator acted more expeditiously. The issue confronting Kourakis J (as he then was) was whether the magistrate was justified in finding that the absence of the CCTV footage occasioned such forensic unfairness to the accused as to amount to an abuse of process and warrant a stay. His Honour said at [60]–[68]:
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.
…
Exceptionally, there may be cases where an unacceptable risk of miscarriage subsists despite the protections to which I have referred.
His Honour then went on to explore the relevant factors in determining whether a risk of miscarriage is acceptable or not. He observed that there must first be consideration of the nature and strength of the evidence to be called at trial: [71]. In this respect, the court is charged with undertaking a form of risk assessment in deciding whether, based on the evidence available, a conviction would be attended by an unacceptable or substantial risk of miscarriage. The degree of risk that is acceptable may vary from case to case: [72]. Finally, of high importance is the public interest in ensuring prosecutions for serious offences proceed to trial where there is at least a reasonable evidential foundation: [73]. Significantly, his Honour concluded at [74] that it was uncontroversial that each of these factors was relevant to an application to stay criminal proceedings as an abuse of process.
Sedmak v Police [2008] SASC 307 concerned an appeal against the refusal of a magistrate to stay a prosecution for theft. The defendant had made 30 electronic withdrawals of cash totalling about $70,000 from her employer’s bank account. She claimed that she had the authority to do so. The bank records of the persons authorised by the employer to operate the account had been lost or destroyed. In dismissing the appeal Doyle CJ said at [29]–[31]:
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.
…
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.
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.
The Full Court in Police v Sherlock (2009) 103 SASR 147 (Doyle CJ, Sulan and Kourakis JJ) emphasised that general unfairness to an accused is not sufficient to warrant a stay; the unfairness must amount to injustice. The Court stated that unfairness to the accused is to be weighed against the public interest in trials proceeding. The Court said at [66]:
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.
It is finally to be noted that the power to stay proceedings is not to be exercised punitively, but strictly to address an abuse of process. Rona v District Court (SA) (1995) 63 SASR 223 involved an application for judicial review of a judge’s refusal to stay charges in the District Court. The accused was charged with four counts of false pretences. In pre-trial proceedings the DPP on two occasions indicated he would proceed on those charges alone. The judge ordered the DPP to file any further statements and attend to any amendment to the information by a certain date. Those orders were not complied with; further witness statements and a fresh Information alleging four counts of fraudulent conversion were filed beyond the date given. The accused sought a stay on the basis of the DPP’s failure to meet case management procedures. After finding that the DPP’s departure from his prior assurances constituted an abuse of process such as to give rise to the power to stay, King CJ said at 229:
The learned judge, however, stayed only one of the counts and refused to stay the other three counts. In the course of his reasons, his Honour spoke of ‘a discretion to impose sanctions’. It is apparent that he approached the matter on the basis of punishing the DPP for his departure from his assurances, regarding the staying of one count only as an appropriate sanction. I think that that approach discloses an error of law. The power is to prevent proceedings which amount to an abuse of process, not to punish non-compliance with case management procedures and directions. The abuse of process may arise from failure to comply with the case management rules or with directions made or undertakings or assurances given at status or pre-trial conferences, but the power to stay must be used for the purpose of prevention of the abuse not merely as a punishment for non-compliance. The question to which the learned judge should have directed his attention is whether proceeding on the fraudulent conversion Information would be an abuse of process and whether in the circumstances those proceedings should be stayed. There is no power to stay proceedings simply as a sanction or punishment.
His Honour continued at 230:
As the application will, in my judgment, now have to be determined on its merits in the District Court, it is important to make the point that the existence of the power to stay resulting from the abuse of process, does not imply that the power must be exercised. A judgment has to be made as to what the interests of justice require. There must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and ‘the community’s expectation that persons who are charged with offences are properly brought to trial’: R v Mellifont (1992) 64 A Crim R 75 at 80.
From the case law outlined above I distil the following principles which apply to the matter at hand:
(i)the absence of relevant material in criminal proceedings, whether due to inadequate disclosure by the prosecution, or to a deficient police investigation, is but one factor bearing upon whether a stay should be ordered;
(ii)the court must look to the evidence that is available in deciding whether a conviction would be attended by an unacceptable or substantial risk of miscarriage. The degree of acceptable risk will vary from case to case;
(iii)it is to be remembered that courts are well versed in making findings of fact in circumstances where not all relevant evidence is available. Only on rare occasions will deficiencies in the evidence render a stay of proceedings necessary;
(iv)an overarching enquiry is whether the unfairness resulting from the lack of material will preclude a fair trial. It may be that the unfairness to the accused is tempered by other facets of the trial process, including the protections afforded by the presumption of innocence and the onus of proof;
(v)a mere general sense of unfairness will not suffice; it must be of such significance that, notwithstanding the powers of the court to ensure fairness, a fair trial is unattainable;
(vi)that an investigation of an alleged crime has not been carried out to its full potential will not necessarily mean that a trial will be rendered an abuse of process. There exists a public interest in ensuring that prosecutions for criminal offences are seen through to trial where there is at least a reasonable evidential foundation;
(vii)the power to order a stay may only be used to prevent proceedings that amount to an abuse of process. It is not to be employed as a means of sanctioning or punishing non-compliance with case management procedures or directions;
(viii)even if the power to order a stay is enlivened, it does not necessarily follow that it must be exercised; in deciding whether a stay is appropriate the court is to be guided by that which the interests of justice require.
It is with these principles in mind that I turn to consider whether the magistrate was justified in ordering a stay of proceedings.
Consideration

I commence by noting that whilst this case has ostensibly turned on the issue of disclosure, that is not the true issue. Rather, the case involves orders made by a magistrate for the police to pursue certain avenues of enquiry and then to disclose the fruits of those enquiries. It is therefore a case dealing more with the adequacy of a police investigation than a failure by the prosecution to comply with its duty of disclosure.
A preliminary issue arises as to whether the magistrate should have made the various directions to the prosecution, as set out at [7] above, on the first trial date. I am of the view that those directions were inappropriate. It is one thing for a judicial officer to identify obvious deficits in the prosecution case and suggest areas where further evidence or information would be beneficial. It is another thing altogether to direct the prosecution to attend to certain tasks or undertake certain enquiries. I am troubled by the spectre of courts adopting a supervisory function over police investigations by ordering enquiries and then staying criminal proceedings where the investigation is deemed to be inadequate. It was not for the magistrate to issue a list of “actions” for police to attend to; how police allocate their resources in an investigation is essentially a matter for them. Here, if the defence considered that further witnesses should be spoken to or called at trial it could have undertaken its own enquiries. As well, resort could have been had to s 20 of the Magistrates Court Act 1991 and a summons issued requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material.
That said, it certainly appears that aspects of the police investigation in this matter lacked vigour. And it seems that the police prosecutor who attended court on 23 April 2015 gave an undertaking to follow up, or at the least agreed to follow up, the various directives given by the magistrate. No doubt he was in a difficult position.
I turn to consider whether the prosecution’s failure to obtain the evidence under consideration resulted in such unfairness to the respondent as to warrant a stay of the proceedings.
I deal first with the CCTV footage. The magistrate was very critical of the prosecution’s failure to obtain CCTV footage or provide an explanation as to the attempts made to do so. It is evident that this particular factor weighed heavily in his decision to stay the proceedings. While it was plainly desirable that any footage of the incident should have been seized by the investigating officer on the night, the reality is that it wasn’t. By the time footage was first called for in the Magistrates Court on 14 November 2014, some nine months after the incident, it no longer existed. Indeed, the investigating officer was present in court on the day the stay was ordered to give evidence to this effect.
The relevant consideration here is the impact of the lack of CCTV footage upon the fairness of the trial. In this respect, I find nothing of note that should serve to distinguish this matter from the many other cases of assault brought to trial without the benefit of CCTV footage. As in those cases, the accused here enjoys the presumption of innocence, and the burden remains on the prosecution to establish beyond reasonable doubt that he committed the offence with which he was charged. It would ultimately be the magistrate’s task to decide, based on the oral testimony to be provided at trial, whether or not that burden had been met. I see no reason why the absence of CCTV footage should render the trial unfair. I add that my finding in this respect is buttressed by the fact that it is far from certain that such footage would have proven useful even if obtained.
I turn next to the lack of witness statements from the two security guards on duty on the night of the incident and from the potential witness “Ben”. As with the CCTV footage, the investigating officer was standing by to give evidence as to the attempts made to obtain statements from the two guards. I note that in his reasons the magistrate alluded to the fact that evidence from the security personnel would have been relevant because their evidence might have exculpated the respondent. While that is potentially true, their evidence might equally have been either inculpatory or completely insignificant. Unless either security guard witnessed the incident personally, his evidence could only amount to hearsay. To my mind, there is nothing to suggest that the two security guards would have provided useful information.
Regarding the potential witness “Ben”, the prosecution’s position was that it had not obtained a statement from him as he could not be identified. This was despite the fact that the respondent’s solicitor had apparently provided police with Ben’s surname. In an ideal world the investigating officer would have obtained relevant statements from all potential witnesses in a timely fashion. However, if Ben was a relevant witness on the respondent’s case, then surely the respondent would have instructed his solicitor to this effect. It would then be in the respondent’s interests to find Ben, take a statement from him and call him at trial. It strikes me as contrived that the respondent should argue that the absence of Ben’s evidence was significant when it was always open to pursue him directly.
A further criticism by the magistrate was the prosecution’s failure to explain why the hotel had not logged an investigation incident report. Mr Crossley was present in court to give evidence as to the internal workings of the hotel, and this issue could have been explored. The magistrate also noted the lack of information regarding the alcohol consumption of X and Y on the night of the incident. Again, that was a point to be explored in evidence. The magistrate also expressed the view that the prosecution ought to have explained X’s equivocality as to whether to proceed with her complaint at all. I do not consider that this was a subject to be addressed in a statement delivered prior to trial. The magistrate’s criticism of the late disclosure by the prosecution of the videotaped photo identification procedure was legitimate; however, given that identity was not in issue, nothing turned on it.
The magistrate quite rightly noted that there were some aspects of the prosecution’s case that were inconsistent. That included a discrepancy between the statements of X and Y as to the nature of the incident itself, with the former alleging that the respondent touched each of her breasts with two hands, and the latter alleging that he used one hand on one breast. The magistrate’s observation was made in the context of considering the strength of the available evidence. I note that their statements also differed as to the location of the incident, with X saying it occurred between the bar and the dance floor, and Y by the staircase near the club entrance. However, again, those discrepancies were properly the focus of cross-examination. They could hardly lead to a conclusion that a conviction would be attended by an unacceptable risk of miscarriage.
While there are a number of facets of the police investigation in this matter that could have been attended to with greater diligence, that alone does not justify a stay. The magistrate’s directions to the prosecution involved tasks that were never likely to bear fruit. The stay order appears to me to be more in the nature of a sanction for failing to attend to those tasks in a satisfactory manner than an attempt to avert a miscarriage of justice.
The question to be asked is whether, in all the circumstances, the respondent cannot receive a fair trial. I am not at all satisfied that this is the case and do not consider that a stay of proceedings was warranted.
Conclusion
The matters relied upon by the magistrate as a basis for his order for a stay did not justify it. It is not appropriate to allow the order to stand.
Perhaps the public interest in pursuing this matter has diminished somewhat given the rather tortured path it has taken. However, whether it is to proceed is a question for the prosecuting authorities.
The orders I make are as follows:
1. the order of the magistrate staying the proceedings is set aside;
2.the order that the prosecution pay costs to the defendant in the sum of $4,900 is set aside;
3. the charge is remitted to the Magistrates Court for trial.