The Queen v Edwards [2009] HCA 20 21 May 2009 H4/2008
ORDER
1.Appeal allowed.
2.Set aside paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 and, in its place, order that the application for a permanent stay of proceedings on the indictment be dismissed.
On appeal from the Supreme Court of Tasmania
Representation
W J Abraham QC with I M Arendt for the appellant (instructed by Director of Public Prosecutions (Cth))
B W Walker SC with J M Morris and B A P Kelleher for the respondents (instructed by Deacons Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Edwards
Criminal law – Practice and procedure – Permanent stay of proceedings on indictment – Threshold for grant of permanent stay – Respondents charged with reckless operation of aircraft – Electronic records of event giving rise to charge overwritten – Delay in prosecuting offences – Whether combination of delay and lost evidence justified grant of permanent stay.
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ. The Supreme Court of Tasmania (Slicer J) ordered that proceedings on an indictment which charged the respondents with the reckless operation of an aircraft be stayed. The Court's reasons were delivered on 28 April 2008, the primary judge holding that a "stay of proceedings ought to be granted".[1] The order which was entered on 16 May 2008 is recorded as "grants stay of proceedings". It is not in issue that the order had the effect of permanently staying proceedings on the indictment.
The indictment charges the respondents jointly with operating an aircraft being reckless as to whether the manner of operation could endanger the life of another person, contrary to ss 20A(1) and 29 of the Civil Aviation Act 1988 (Cth)[2].
[2]In the alternative, the respondents are charged with operating an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person, contrary to ss 20A(2) and 29 of the Civil Aviation Act 1988 (Cth).
No appeal lies to the Court of Criminal Appeal of Tasmania from the decision of a trial judge ordering a stay of proceedings on indictment[3].
[3]Chapter XLVI of the Criminal Code (Tas).
The Crown appeals by special leave to this Court against the order on the ground that the primary judge's discretion miscarried in that he acted upon a wrong principle and that he took into account irrelevant considerations relating to the suggested complexity of the trial. These submissions should be accepted. For the reasons that follow the order staying the proceeding should be set aside.
The Crown case
The respondents are airline pilots who were the pilot and first officer of a Qantas Boeing 737-400 aircraft…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Edwards
Sign in free to access the full text
Details
AGLC
R v Edwards [2009] HCA 20
Case
[2009] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning an application for a permanent stay of proceedings brought by the respondents, who were charged with the reckless operation of an aircraft. The dispute centred on the alleged loss of crucial electronic evidence and a significant delay in the prosecution of the offences.
The central legal issue before the High Court was whether the combination of the delay in prosecuting the offences and the loss of "primary technological evidence" justified the grant of a permanent stay of proceedings. This evidence included electronic records from an airport monitor and the aircraft's flight data recorder, which were alleged to be essential for the defence.
The High Court allowed the appeal, setting aside the order of the Supreme Court of Tasmania that had granted a permanent stay. The Court reasoned that while the loss of evidence and delay could contribute to prejudice, the threshold for granting a permanent stay required a demonstration that the continuation of the proceedings would constitute an unacceptable injustice or unfairness. The primary judge had applied a test focusing on whether the combination of lost evidence and delay created such unacceptable injustice, but the High Court found that the evidence before it did not meet this stringent requirement.
Consequently, the High Court ordered that the application for a permanent stay of proceedings be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 and, in its place, order that the application for a permanent stay of proceedings on the indictment be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The application for a stay came before Slicer J on 26 November 2007. The application was based on the loss of "primary technological evidence" ("the lost evidence") and on the delay which, it was said, strengthened the "prejudice" flowing from the lost evidence[4]. [4]R v Edwards and Sarunic [2008] TASSC 17 at [7].The lost evidence and the operation of the PAL The lost evidence comprises the electronic record of the activation of the PAL made by a Monitor at the airport ("the Monitor List") and the information recorded on the aircraft's flight data recorder ("FDR"). The Monitor List contained a record of the last 13 activations of the PAL. A print-out of the Monitor List was obtained two days after the incident. This only contained records of activations on 24 and 25 October 2001. The FDR recorded the keying of the VHF radio system, the time of transmission and its duration. It did not identify the specific frequency or the purpose of the transmission. Given the time of night at which the incident occurred and the absence of staff in the control tower, an inference could be drawn from the FDR data that a radio transmission was made in order to activate the PAL. Data recorded on the FDR was overwritten after a time. The evidence established that the information recorded on the FDR during the aircraft's flight on 23 October 2001 could have been retrieved within 13 to 15 days of that day. The PAL was activated by the transmission of three pulses on a frequency specified by the manufacturer. Each pulse was required to be between one and five seconds in duration and it was necessary for all three to be transmitted within a 25 second span. Once activated, the PAL operated for an interval of between 30 and 60 minutes depending on the timer setting. The timer setting at the airport provided for a period of 32 minutes illumination. The system was designed to warn of the impending extinguishment of the lights; during the final 10 minutes of the cycle the IWDI flashed continuously. There were two distinctive features of the operation of the PAL at the airport. First, if the final pulse was transmitted during or after the 25th second, the lighting cycle defaulted to the concluding 10 minute phase, which was accompanied by the flashing of the primary IWDI ("the straddle effect"). Secondly, Civil Aviation Order 92 required the primary IWDI to be located on the left side of the runway, unless this was impractical. The primary IWDI at the airport was positioned on the right side of the runway. There were two IWDIs at the airport. Only the southern IWDI was configured to flash during the concluding phase of the PAL cycle. The northern IWDI, which was closer to the terminal, remained constantly alight throughout the PAL cycle. The respondents did not give evidence at the hearing of their application.The primary judge's reasons The primary judge concluded that factors of overall delay and the lost evidence made it appropriate to grant the stay[5]. In arriving at this conclusion his Honour stated the test in this way:[6]"[W]hether the combination of loss of primary data or evidence and delay constitute, not abuse of power or inappropriate prosecution or abuse of process, but whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness (Walton v Gardiner)." (Emphasis added)[5]R v Edwards and Sarunic [2008] TASSC 17 at [60].[6]R v Edwards and Sarunic [2008] TASSC 17 at [59].
Decision
Reasons for decision
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ