R v Carrasco
[2022] ACTSC 44
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carrasco |
Citation: | [2022] ACTSC 44 |
Hearing Date(s): | 28 January and 17 February 2022 |
DecisionDate: | 15 March 2022 |
ReasonsDate: | 15 March 2022 |
Before: | McWilliam AJ |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for permanent stay of proceedings – applicant awaiting trial – kidnap – make demand with threat to endanger health – common assault – where police investigation was deficient – whether continuation of proceedings would involve unacceptable unfairness or injustice |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 32, 38 Criminal Code 2002 (ACT) s 342 |
Cases Cited: | Barton v The Queen (1980) 147 CLR 75 Dupas v The Queen [2010] HCA 20; 241 CLR 237 |
Parties: | Samuel Carrasco (Applicant) The Queen (Respondent) |
Representation: | Counsel E Chen (Applicant) S Saikal-Skea (Respondent) |
| Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 223 of 2021 SCC 224 of 2021 |
McWilliam AJ
Before the Court is an application by the accused, Mr Samuel Carrasco, seeking a permanent stay of prosecution in relation to two charges committed for trial before this Court, and one transferred charge. The relevant charges are:
(a)One count of detaining a person for advantage (kidnapping), contrary to s 38(b) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2021/5241); and in the alternative,
(b)One count of a demand accompanied by a threat, contrary to s 32(2) of the Crimes Act (SCCAN2021/148); and
(c)One transferred offence of common assault, contrary to s 26 of the Crimes Act (CC2021/5243)
In addition, the applicant has pleaded guilty to one count of blackmail with the intention of obtaining a gain, contrary to s 342(a) of the Criminal Code 2002 (ACT) (Criminal Code).
The application is founded upon on the ground that the accused has been deprived of the opportunity of a fair trial because of alleged inadequacies in the police investigation, including the failure:
(a)to obtain (or provide) relevant evidence, namely CCTV and police body worn camera footage of the complainant and applicant during the alleged offending and subsequent arrest (the footage); and
(b)to search the complainant’s vehicle for any physical evidence that could substantiate the alleged offending.
The accused contends that the loss of evidence and absence of due diligence in the police investigation in this matter has created such fundamental and irreparable unfairness as to make the continued prosecution of the matter unjustifiably oppressive to the applicant.
The Crown’s case
The Crown’s case, as relevant to the application before the Court, is as follows:
(a)On 16 May 2021, the applicant held a syringe filled with ketamine against the complainant’s neck in an attempt to coerce the complainant into driving the accused to Yass, NSW, so the accused could “get $5,000”.
(b)The complainant then drove the accused along Yass Road in Queanbeyan, NSW in her white Holden Commodore station wagon. The complainant stopped at a BP Service Station (the service station) in Queanbeyan, and left the vehicle, unaccompanied by the applicant, to buy soft drinks.
(c)Numerous text messages were then sent from the complainant’s phone to the complainant’s mother, demanding payment of $5,000 (sent by the accused, or alternatively, the complainant under duress). The complainant’s mother notified police.
(d)On 17 May 2021 at 12:11am, police located the vehicle, finding the accused and the complainant inside. Neither police officer activated their body worn cameras. Police described the demeanour of the complainant as “extremely distressed”. The accused was then arrested.
On 15 June and 21 September 2021 respectively, the accused pleaded not guilty to the charges of kidnapping and common assault. The accused’s case is that he and the complainant jointly intended to blackmail the complainant’s mother, by pretending they had been kidnapped. On the accused’s case, the complainant was at all times voluntarily in his company and was never threatened with harm.
After receiving the brief of evidence from the prosecution, counsel for the accused requested the CCTV footage from the service station and sought disclosure of any attempts made by police to search the complainant’s vehicle. Counsel for the accused was informed that the CCTV footage from the service station was deleted three weeks after the alleged offences occurred, and as such, no longer existed. Police gave no response to the request for any information about a search of the complainant’s vehicle.
Following the hearing of the present application on 28 January 2022, the application was adjourned to enable further information to be provided. The Court directed the AFP to provide a further brief of documents to the Director of Public Prosecutions by Friday 11 February 2022, as follows:
(a)A further statement from Constable Taylah Muscat, stating:
(i)Whether the complainant’s white [Holden] commodore station wagon was searched by police, and:
1.if not, why not; and
2.if so, what was the result of the search.
(ii)Were Constable Muscat and Constable Bartel wearing body worn cameras when they intercepted the vehicle and:
1.If not, why not?
2.If so, why were they not activated?
(b)Any further statement from the shop attendant with whom the complainant interacted at BP Service station located at 50 Yass Road, Queanbeyan, NSW.
(c)Bank statements from the complainant covering 16 to 17 May 2021.
Statements provided in compliance with the direction provided:
(a)Neither police officer recalled whether or not the complainant’s vehicle was searched:
(i)Constable Bartel “[did] not remember searching this car for evidence”; and
(ii)Constable Muscat in her statement dated 28 January 2022 provided “[a]t no time did I search this vehicle”, and further in her statement dated 14 February 2022 commented:
On Thursday 3 February 2022, I asked all Officers present about the search of the vehicle. Senior Constable Jeffery BOURNER informed me that Mr BARTEL searched [the complainant’s] vehicle… and did not locate any item of interest.
(b)Police officers did not activate their body worn cameras, as there was no requirement to have the camera recording;
(c)The shop attendant did not recall any transactions made during the relevant shift; and
(d)The complainant used cash to purchase the soft drinks (although a screenshot of her Commonwealth Bank account from that date was provided).
The Court’s power to grant a permanent stay
The principles relevant to an application for a permanent stay are well settled, and were set out in Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 (Eastman) at [35] (citations omitted):
(1) A permanent stay of a proceeding may be ordered to prevent an abuse of process. The central question is ‘whether there is a fundamental defect “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences”’.
(2) ‘Abuse of process’ encompasses not only circumstances within the narrow conception of that term — such as bringing a proceeding for an improper purpose, or pursuing a proceeding which is foredoomed to fail — but also the prosecution of a criminal proceeding in such a way as to make it unfair, an instrument of oppression.
(3) ‘It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition’.
(4) A heavy onus lies upon an applicant for a permanent stay of proceedings to persuade a court to make the order sought. Grant of a permanent stay is a remedy which will only be granted in a rare case, though see the significance of ‘rarity’ as explained in Dupas v The Queen. In a case of alleged unfairness, a court should not order a stay unless it is satisfied that there are no other means, such as by directions of the trial judge, of bringing about a fair trial. So, in Dupas v The Queen, the High Court said this:
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
(5) In determining whether an application for a permanent stay of proceedings should succeed:
A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the ‘social imperative’ as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.
What the Court there said calls to mind this observation of Brennan J in Jago v District Court (NSW):
If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law, and whether the legal right of an accused truly stated is a right to a trial as fair as the courts can make it.
(6) The applicant for a stay must establish that the continuation of the proceedings would — not could — involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
(7) Long delay of itself, absent evidence of prejudice to the defendant, is at the least very unlikely to justify grant of a stay.
(8) The absence or loss of evidence, or of potential witnesses, will not justify grant of a stay unless the lost evidence, or what the potential witnesses could have said, was likely to have had a significant effect on the trial. That is so even where the deficiency can be attributed to poor work by the investigating authority.
(9) Even a large amount of very unfavourable pre-trial publicity is extremely unlikely to justify grant of a stay of proceedings, for the reasons explained in Dupas v The Queen.
(10) The making or facilitation of illegal conduct may provide circumstances in which a permanent stay will be granted. Ridgeway v The Queen and Moti v The Queen were cases of that kind.
The above principles were taken from the judgment of Ashley AJ at first instance in R v Eastman [No 9] [2016] ACTSC 69 and were adopted in Eastman as an accurate summary of the law at [35].
In summary then, a permanent stay will only be granted where continuation of the proceedings would involve an unacceptable unfairness or injustice that cannot be overcome, such that any trial would be so seriously defective as to constitute an abuse of process: see R v DU (No 2) [2019] ACTSC 241 at [55]; Jago v District Court (NSW) (1989) 168 CLR 23 (Jago) per Mason CJ at 30–31, 34, Deane J at 61 and Gaudron J at 78. It is a rare occurrence and will only be ordered “in an extreme case”: see Dupas v The Queen [2010] HCA 20; 241 CLR 237 (Dupas) at [18]; R v Glennon (1992) 173 CLR 592 at 605; and Jago at 34. There must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: see Barton v The Queen (1980) 147 CLR 75 at 111.
In deciding whether to grant a permanent stay, the Court must weigh relevant factors, some of which have been referred to above. In Walton v Gardiner (1993) 177 CLR 378 they were said (at 396) to include:
[T]he requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
Issues for determination on the application
Counsel for the accused identified the following questions to be resolved in determining whether a permanent stay of criminal proceedings should be granted:
(a)Has there been a fundamental defect which goes to the root of the trial?
(b)Is there anything that a trial judge can do in the conduct of the trial that could relieve against its unfair consequences?
(c)Is the unfairness such that the administration of justice is best served by permanently staying the proceedings, rather than having the criminal offences brought to trial?
The Crown agreed those were the issues to be addressed.
Has there been a fundamental defect which goes to the root of the trial?
Counsel for the accused submitted that the following combination of failures constituted a fundamental defect that goes to the root of the trial:
(a)the failure of the police to provide evidence (or even confirm) that the complainant’s vehicle had been searched;
(b)the failure of police to activate body worn cameras; and
(c)the loss of the CCTV footage from the service station by reason of the police’s failure to obtain a copy within three weeks of the offence.
Counsel for the Crown accepted that the conduct of the police investigation was “far from best practice”. I accept that submission. It is clear that the police investigation was, in significant respects, plainly deficient. There was a failure to obtain relevant footage in a timely manner, with the result that such evidence was lost, the failure to secure relevant visual or even audio footage at the time the police first approached the complainant, and the unsatisfactory nature of the responses from police in relation to the searching of the vehicle, which extended to the quality of the information provided in the further statements purportedly in compliance with the Court’s direction.
I also accept counsel for the accused’s submission that these failures are substantial and will affect forensic decisions made as to the conduct of the trial.
However, I do not accept that quality of the investigation undertaken amounts to a fundamental defect that goes to the root of the trial. There is, for example, some evidence as to a search of the complainant’s vehicle being conducted, albeit that it was provided belatedly and that may have consequences for its strength at trial. There is also some evidence from police witnesses as to what occurred when they came upon the complainant and the accused. Again, body camera footage would have been of assistance, but I do not think it can be classified as essential or going to the root of the trial.
As to the loss of footage of what occurred at the service station, the case put is not that the accused was in the service station with the complainant at any point. What has been lost is material that may have assisted the accused to challenge the credibility of the complainant by reference to her conduct and demeanour, noting the further uncertainty about what might have been shown in the absence of knowledge of camera angles and image quality.
However, even if prejudice to the accused has been occasioned through the loss of evidence, either as a result of the passage of time or inadequacy in the police investigation, this prejudice does not compel a conclusion that the trial would be so unfair as to warrant the granting of a permanent stay.
In R v Smith (No 1) [2011] NSWSC 725; 218 A Crim R 52, Buddin J examined a number of authorities relating to the absence of evidence and defective police investigations at [19]-[27]. The following extracted paragraphs have direct relevance to the application before the Court (emphasis added):
[19] In R v Ulman-Naruniec (2003) 143 A Crim R 531, a stay was sought on the basis that there had been both “an inexcusable failure” on the part of the prosecution to provide the applicant with “material fundamental to her defence of the charge”, and because there was evidence that was “no longer available”. Bleby J, with whom Besanko J agreed (Sulan J dissenting) said:
I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued. …
Defective as the handling of the police investigation may have been in this case, I do not consider that the complaint of lack of access to the material in question would justify the extreme step of a permanent stay. The accused can put it no higher than that there is just a possibility that some of the lost material may be of some assistance. …
In my opinion, on the evidence in this case and on the findings of the trial Judge, it was not “on the cards” that the missing material would be likely to assist the defence. The evidence did not go as far as that. Any deficiencies in the investigation which might raise a doubt on the prosecution case will no doubt be exploited before the jury and, if appropriate, may be the subject of comment by the Judge. I do not consider that the lack of access to this material either alone or taken in combination with the matters which follow, would justify a permanent stay on the ground of abuse of process in accordance with the principles explained in Jago [at paragraphs 37, 39 and 42].
…
[22] In Penney v R (1998) 155 ALR 605, it was contended that an unfair and incompetent police investigation had rendered the verdict unsafe and unsatisfactory. Callinan J, with whom the remainder of the court agreed, said:
It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.
There is no doubt that the police investigation was unsatisfactory in some respects. However these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
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 [paragraphs 16–18].
[23] In R v Edwards (2009) 83 ALJR 717 the High Court observed:
The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay. They seek to distinguish their case on the basis that the loss here is of the independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event.
The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair [at paragraphs 30 – 31] [footnotes omitted].
The above is relevant to the applicant’s submission that the “objective documentary” evidence, particularly the footage, lost due to the police investigation goes to the “root of the trial” and cannot be cured through cross-examination of the complainant witness or a direction to the jury by the trial judge.
Counsel for the accused relied on the decision in R v Reeves (1994) 121 FLR 393 (Reeves). There, the destruction of documents in a fraud matter meant that the Crown could not establish a prima facie case of fraud, nor could the accused defend himself by reference to the documents that may have exculpated him. This was found to be a fundamental defect that could not be overcome, and a stay was granted.
None of the evidence said to be lacking in the present case rises to the point of being the very subject matter of the charge. Accordingly, I accept the Crown’s submission that this case is not in the same category as the evidence in question in Reeves. It is not the case that evidence in question here is necessary for the Crown to establish a prima facie case. Nor is it the only evidence that may have exculpated the accused.
Is there anything that a trial judge can do in the conduct of the trial that could relieve against its unfair consequences?
Even if I had accepted that the lack of the three items of evidence identified cumulatively produced a fundamental defect, such defects may be presented to the jury in cross-examination and the jury may be addressed on the gaps in the evidence.
The loss of evidence limits the accused’s ability to test the credibility of the complainant, but the Crown also cannot rely on that evidence to support an inference that the accused’s version of events is false.
I consider that the trial judge may also be able to give a direction about procedural disadvantage, depending upon how the trial unfolds. It is not necessary for the Court to turn to the possible directions the trial judge could make to the jury about this absence of evidence at this stage. That will depend on how the case develops and what submissions the parties ultimately make: see Gilham v The Queen [2007] NSWCCA 323 [2007]; 73 NSWLR 308 per Spigelman CJ at [121].
It suffices to say that I am not persuaded that it would be impossible to alleviate any unfairness through the applicant’s cross-examination of relevant witnesses (including the complainant witness) or through appropriate directions or warnings to the jury.
Is the unfairness such that the administration of justice is best served by permanently staying the proceedings, rather than having the criminal offences brought to trial?
As the Crown submitted, there is a public interest in the case being brought to trial. The offences the subject of the charges are serious. The complainant has provided a version of events and is available for cross-examination. In light of the view I have taken about the nature of the evidence and the potential remedies available to expose the defective investigation, putting the evidence, such as it is, to a jury is what I consider to be the course that will best serve the administration of justice.
I am not satisfied that putting the case on the evidence marshalled to date would involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
Accordingly, the accused has not discharged the heavy onus required to persuade the Court to grant the application. The application must be dismissed.
Orders
The order of the Court is:
The application in proceedings dated 17 December 2021 is dismissed.
This judgment is not to be published other than to the parties until further order of the Court.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam Associate: B Adams Date: 15 March 2022 |
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