R v Fouyaxis (No 2) - [2007] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOUYAXIS (No 2)
[2007] SADC 62
Ruling of His Honour Judge Chivell
25 May 2007
CRIMINAL LAW
Practice and procedure - stay of proceedings - destruction of evidence before trial - destruction inadvertent - defence prevented from further testing evidence - no more than presumptive prejudice resulting - insufficient to justify a stay in the particular circumstances of the case.
Practice and procedure - discretion to exclude evidence - no grounds to exclude as a matter of public policy - no unfairness sufficient to enliven general unfairness discretion to exclude in the particular circumstances of the case.
Evidence Act, 1929 s34, referred to.
Jago v District Court of New South Wales (1989) 168 CLR 25; Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police (1998) 197 LSJS 398; R v Brambley (1998) 199 LSJS 198; Commonwealth Service Delivery Agency v Burke (1999) 202 LSJS 178; Rukavina v Police [2004] SASC 247; R v Whelan [2005] SASC 205; Barton v R (1980) 147 CLR 75; R v Ulman-Naruniec (2003) 143 A Crim R 531; Penney v R (1998) 72 ALJR 1316; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; R v Lobban (2000) 77 SASR 24, applied.

R v FOUYAXIS (No 2)
[2007] SADC 62

The accused has pleaded not guilty to aggravated serious criminal trespass in a place of residence, aggravated robbery, common assault, causing grievous bodily harm with intent to do grievous bodily harm and theft.
Stated briefly, the allegations are that the accused, in company with three other persons, all wearing balaclavas, and armed with a baseball bat and Samurai swords, forcibly entered the home of the two male victims and bound their hands with tape. During the home invasion, the female victim was assaulted, and one of the male victims was hit a number of times with a baseball bat, thereby sustaining very serious injuries.
It is alleged that various items were stolen from the two male victims.
These alleged offences occurred on 20 April 2004.
Destruction of Evidence
For an outline of the Crown case in this matter, I refer to the ruling I made yesterday (R v Fouyaxis [2007] SADC 61, 24 May 2007).
For the purpose of this ruling, it is sufficient to say that in the morning of 30 April 2004, a search of the accused’s home was conducted as a result of which a number of exhibits were seized. They included two Samurai swords and a baseball bat and a number of items which the prosecution allege were stolen at the time of the home invasion, and a newspaper article concerning the event.
At the time of the search, the accused was in custody on other matters. His clothing and shoes were also seized.
Blood which matched the DNA profile of David Holton, the victim of the home invasion, was found on the baseball bat, one of the Samurai swords, and one of the shoes.
The accused was arrested on 11 July 2004 when this information became available. Conversations at the time of the arrest and, later, a formal interview at the Port Adelaide Police Station, were recorded on video camera. The accused denied involvement in the home invasion, saying that he had purchased the items seized from a person whom he refused to name.
It is common ground that most of the important exhibits have been destroyed by the police. In his statement, dated 17 November 2005, Senior Constable Manning says that, in his capacity as Audit and Inspection Officer for the Port Adelaide area, he arranged for them to be destroyed on 23 June 2005 as he (wrongly) believed that the charges against the accused had been finalised. Clearly, the destruction of this evidence was inadvertent, in the sense that it was based upon a mistaken belief that the exhibits were no longer required.
Agreed Facts
The following facts have been agreed between the prosecution and the defence, and I will treat them as admissions made by both sides for the purposes of s34 of the Evidence Act:
1.The silver baseball bat exhibit PMN 16 (item 13) was closely examined by Forensic Scientist, Katrin Both. Ms Both swabbed the two visible blood‑like stains towards the end of the shaft of the bat (PMN 16.A and PMN 16.B) both of which produced a DNA profile matching the victim David Holton.
The remainder of the shaft of the bat, which did not show any blood‑like staining, was not swabbed. It is a possibility that further DNA samples may have been present on the shaft.
Swabs were taken from the handle of the bat, but a DNA profile was not produced.
2.The ‘Merrell’ brand left shoe exhibit MPF 3 was closely examined by both Forensic Scientists Russell Cook and Katrin Both. A blood‑like spot on the middle of the front upper was sampled (exhibit MPF3/L.A), which produced a DNA profile matching the victim David Holton.
A sample was taken from the inside of both shoes, the laces and the back tabs which did not produce a profile.
It is a possibility that further DNA samples may have been present on the outside of both shoes.
3.The long bladed Samurai sword exhibit PMN 13 was closely examined by Forensic Scientist Ben Harris. Swabs were taken from a blood‑like stain on the blade of the sword (exhibit 10.2.A and 10.2.B) both of which produced a DNA profile matching that of the victim David Holton.
A tape‑lift was taken from the handle of the sword producing an incomplete DNA profile of which the accused cannot be excluded as the possible source. The sample is weak and said to be of limited evidentiary value.
It is a possibility that further DNA samples may have been present on the blade.
4.The areas of the baseball bat and swords from which DNA samples were taken compromised any potential fingerprints in those discreet areas.
It is possible that fingerprints were present on the remaining areas of those exhibits.
Forensic Scientist, Ben Harris, noticed ‘fingerprint ridging’ on the blade of the long bladed Samurai sword exhibit PMN 13.
Application for a Stay
The accused has applied, pursuant to Rule 8 of the District Court Criminal Rules for a permanent stay of proceedings on the following grounds:
·the destruction of this evidence deprives the accused of properly establishing a hypothesis of innocence through either DNA testing or fingerprint testing or other forensic analysis connecting the destroyed exhibits to parties other than the accused; and
·the accused will not receive a proper trial according to law as the destruction of this evidence deprives the jury of the ability to examine the exhibits for themselves and thereby form their own conclusions as to the evidentiary value of this evidence and any other evidence associated with those destroyed exhibits.
Application for Exclusion of Evidence
The accused has also applied, pursuant to Rule 9 of the District Court Criminal Rules for an order excluding the evidence of Katrin Both, Andrew Donnelly and Nicole Sly in relation to DNA analysis, and Michael Thomas in relation to shoe mark comparisons also on the basis of the destruction of the exhibits.
I will deal with the application for a permanent stay first.
The Power to Order a Stay of Proceedings
There is no doubt that jurisdiction to stay proceedings which are an abuse of process of the court exists. In Jago v District Court of New South Wales (1989) 168 CLR 25, at p25 Mason CJ said:
It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process (Clyne v New South Wales Bar Association, and Barton v R). Subject to statutory provisions to the contrary, a court also possesses power to control and supervise proceedings brought in its jurisdiction and that power includes the power to take appropriate action to prevent injustice (Hamilton v Oades). (references omitted)
Later, at page 34, Mason CJ said:
The test of fairness involves a balancing process, for the interest 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. At the same time, it should not be overlooked that the community expects trials to be fair .....
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.
There have been a number of cases in which an application for a stay of proceedings has been considered in the context of the loss or destruction of exhibits. Some of these are discussed below.
In Holmden v Bitar (1987) 47 SASR 509, a prosecution for an offence against the Quarantine Act involved an allegation of importation of tins of paté. The tins had been destroyed by the customs authorities. Clearly, the content of the tins went to the very heart of the prosecution. The defendant bore an onus of proving that the tins did not contain meat. She was prevented from doing so by the destruction of the exhibits. In all the circumstances, the proceedings were stayed.
In Duncombe-Wall v Police (1998) 197 LSJS 398, recordings of a number “000” calls were destroyed by the police notwithstanding a request for the preservation of the tapes made by the defence which was ignored. The court held that the tapes were important to the credibility of the witnesses and that nothing could have been done to rectify or remedy the absence of evidence. A stay was granted.
In R v Brambley (1998) 199 LSJS 198, the destruction of cannabis prevented the defence from proving that the quantity of cannabis in the possession of the accused was below the amount deemed to be a commercial quantity. Again, this was held to be sufficient to justify a stay.
In Commonwealth Service Delivery Agency v Burke (1999) 202 LSJS 178, a prosecution alleging a number of counts of obtaining a benefit not payable was stayed because fortnightly forms filed by the accused had been destroyed and these were considered important documents for the purpose of determining whether or not the information supplied by the accused was false.
Rukavina v Police [2004] SASC 247 involved a prosecution for stealing several videos from K‑mart. The videos were not seized at the time the defendant was apprehended, and by the time of trial it was impossible to verify the defendant’s claim that she had purchased the videos from Target. The relevant bar code on the videos would have either supported or refuted that claim. Indeed, the police could have verified the claims made by the accused at the time and the prosecution would probably not have proceeded at all.
In the circumstances, Nyland J substituted a verdict of acquittal on appeal after setting aside the conviction recorded by the magistrate.
In R v Whelan [2005] SASC 205, a glass door on which fingerprints were detected was discarded prior to trial. The issue arose as to the position of the fingerprints on the door, and in particular, whether they were on the inside or the outside of the door when it was in place at the time of the alleged offence. Photographs did not assist, and Gray J said that he regarded the evidence as “relevant, probative and critical”. His Honour observed in the process of granting a stay:
Careful storage of crucial exhibits is an important component in the provision of a fair trial.
It is clear from the cases quoted above that in each case in which a stay was granted, the court considered that the evidence which was no longer available went, in the words of Wilson J in Barton v R (1980) 147 CLR 75 at 111, “to the root of the trial” and that there was “nothing that a trial judge can do in the conduct of a trial can relieve against its unfair consequences”.
In this case, Mr Lyons argued that having regard to the facts which have been agreed by the Crown, it cannot be presumed that no other DNA samples were present on the shoes, or that no other DNA samples were present on the blade of the Samurai sword, or that no other fingerprints were present on the remaining areas of the baseball bat and swords.
Further, he argued that there were a number of other exhibits seized from the accused’s home and which were alleged to have been stolen during the home invasion, which were not fingerprinted or tested for DNA at all before they were destroyed. It could also not be presumed that further examination of those items might not have revealed further information.
Mr Lyons argued that had these items been available for further testing, and had such testing revealed further information in the form of proof that persons other than the accused may have handled the items, this may have opened up further lines of enquiry as to the identity of those who were involved in the home invasion.
He argued that the loss of the opportunity to do that prevents the defence from putting forward evidence to support the hypothesis which is consistent with the accused’s innocence, namely that he purchased all of these items from the person he referred to in the interview with Detective Brevet Sergeant Anderson (exhibit VDP14).
However, I agree with the submission of Mr Weir, for the Director of Public Prosecutions, that the prejudice suggested by Mr Lyons was not actual prejudice of the type identified in the cases I have set out above, but was merely presumptive prejudice which is clearly insufficient to justify a stay of proceedings. (see Jago (supra) per Mason CJ at p33, Deane J at p62, Toohey J at pp71-72, and Gaudron J at p78).
The onus is clearly upon the applicant to demonstrate more than presumptive prejudice and the discretion to stay proceedings should only be exercised in rare or exceptional circumstances (see Jago (supra) per Mason CJ at p34, Deane J at p60, and Gaudron J at p76).
In R v Ulman-Naruniec (2003) 143 A Crim R 531 at p540, Bleby J 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 enquiry. 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 enquiry that cannot later be pursued.
His Honour then went on to quote the well‑known passage in the judgment of Callinan J (with whom McHugh, Gummow, Kirby and Haine JJ) agreed in Penney v R (1998) 72 ALJR 1316 at 1319-1320:
..... 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 a fair trial.
Bleby J then continued:
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 this case, there is an added factor which militates against the grant of a stay, which is, after all, discretionary.
In his interview with Anderson on 11 July 2004, the accused on several occasions said that he had bought the articles in question, including the clothing and shoes, from a person or persons whom he knew, but whose identities he refused to reveal. His refusal was made on various bases, including fear of reprisal, but I note that that did not deter the accused from attempting to negotiate release of the information in exchange for bail (see exhibit VDP14, p11, pp31-34).
In making this observation, I reject Mr Lyons’s submission that there is a risk of reversing the onus of proof in these proceedings. Of course, the onus of proof is always on the prosecution to prove its case. However, in an application for a stay of proceedings, the onus is on the applicant to demonstrate the existence of facts which enliven the discretion to order a stay, and the onus is a heavy one (Williams v Spautz (1992) 174 CLR 509 at p529 Mason CJ, Dawson, Toohey & McHugh JJ).
The accused seeks to argue that his inability to point to evidence which supports his claim to innocence on the basis that he bought all this equipment from someone who may or may not have been involved in the home invasion has resulted in prejudice. However, his refusal to identity that person or persons to the police so that those claims can be further investigated, does not sit well with his claim to have been prejudiced.
In those circumstances, it seems to me that he can hardly complain that he has suffered prejudice in the conduct of his defence in seeking to promote his version of these events.
Taking all these matters into account, and in particular balancing the competing considerations referred to by Mason CJ in Jago (supra) (and see also the judgment of the High Court in Walton v Gardiner (1993) 177 CLR 378 at 395-6), I am not persuaded that the presumptive prejudice which may exist as a result of the destruction by the police of the exhibits seized by Anderson and his colleagues on 11 July 2004 is such that it will deprive the accused of a fair trial.
In those circumstances, the application for a permanent stay of proceedings is refused.
Application for Exclusion of Evidence
The application by the accused for the exclusion of the evidence of Katrin Both, Andrew Donnelly, Nicole Sly and Michael Thomas, was made on the following bases:
·The admission of the evidence would be unfair to the accused.
·In the absence of being able to test the items for marking or fingerprint or DNA inconsistencies with use or ownership by the accused, the admission of this evidence would be, in all the circumstances, unfair, and the same ought to be excluded in the court’s discretion.
It seems to me that these applications amount to the same thing, summarised in the first point.
Having regard to the very helpful summary of the relevant law as to discretionary exclusion of evidence contained in the judgment of Martin J in R v Lobban (2000) 77 SASR 24 at p51, the discretion to exclude this evidence might be enlivened on two bases:
·The discretion to exclude as a matter of public policy on the basis that the evidence has been obtained as a result of unlawful or improper conduct on the part of law enforcement authorities.
·The general discretion to exclude non‑confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair.
In my opinion, this is not a case in which it can be argued that the evidence has been obtained by unlawful or improper conduct such as would enliven the public policy discretion described in (v). If the same argument can be made in the situation where evidence is absent for those reasons, I would not be prepared to find that there has been unlawful and improper conduct by the police in destroying the exhibits. I accept that the destruction was inadvertent. It could be that the prosecution case has been seriously weakened as a result. The destruction could be described as inappropriate, even institutionally incompetent, but it was not unlawful or improper.
As to the general unfairness discretion, Martin J said at p45 of his judgment in Lobban (with which Doyle CJ and Bleby J agreed):
Bearing in mind the statements in the authorities to which I have referred, in my opinion a discretion exists to exclude non‑confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is duty of the court to attempt to ensure the trial is fair: see Barton v R (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23 and Dietrich.

His Honour pointed out that the so‑called “Christie discretion”, in other words, a discretion to exclude evidence based upon a consideration that the probative weight of the evidence is outweighed by its prejudicial effect, was simply another example of the general unfairness discretion.
Lobban was a case involving the destruction of evidence. In that case, there was unlawful destruction of cannabis by the police prior to trial. By such destruction, it was accepted that the accused had lost the opportunity to test the prosecution evidence through analysis of the alleged cannabis by an analyst of the accused’s choice. Martin J pointed out:
·There was no reason to doubt the reliability of the evidence of the analyst.
·Photographs of the material were taken.
·There was no cross‑examination of the analyst.
·There was no denial that the material was correctly identified.
·The conduct of the defence case lacked any suggestion of an attack upon the merits of the evidence.
His Honour observed:
Rather it seeks to rely upon a mistake by a police officer not connected with the investigation without demonstrating any sound basis for a conclusion that the error by that officer has created any genuine unfairness to the appellant or any risk of a miscarriage of justice (p51).
In the same way, in this case:
·There is no suggestion that the evidence of the proposed witnesses is inaccurate or unreliable.
·Photographs were taken.
·The samples upon which the DNA analysis was undertaken are available for re‑testing should the defence have wished to have had that carried out.
·The witnesses are available for cross‑examination by the defence on any topic relevant to the proceedings.
In those circumstances, I see no unfairness in the admission of the evidence proposed. The fact that the destruction by the police of the exhibits may have prevented the further analysis of the exhibits, for the purposes outlined herein in the context of the application for a permanent stay of proceedings, does not result in an unfairness to the accused sufficient to justify exclusion of the evidence.
In those circumstances, I see no justification for exclusion of the proposed evidence on the basis of either the public policy discretion or the general unfairness discretion.
The application for exclusion is therefore dismissed.