R v Gebert - [2020] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v GEBERT
[2020] SADC 19
Reasons for Decision of Her Honour Judge Deuter
20 February 2020
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged with Trafficking in a Controlled Drug. All police exhibits inadvertently destroyed. Material police witnesses for the prosecution unavailable to give evidence at trial.
Application to exclude evidence and /or that proceedings be stayed. Discussion of discretion to stay proceedings.
Discussion of discretion to exclude evidence and s 53 of the Evidence Act 1929 (SA).
Findings:
1. That the Exhibits log prepared by SAPOL is a business record pursuant to s 53 of the Evidence Act 1929 (SA).
2. On the facts, it is not in the interests of justice to admit the exhibits log into evidence: s 53 (2)(c) of the Evidence Act 1929 (SA).
3. That the Crown be prohibited from leading evidence as to the analysis of the powder comprising Exhibit 13/B56468-01.
District Court Rules Rule 49; Evidence Act 1929 s 53, s 53(1), s 53(2)(a), s 53(2)(b), referred to.
R v Gebert [2019] SASCFC37; Jago v District Court of NSW (1989) 168 CLR 23; Whelan v Police [2005] SASC205; R v Brambley (1998) 199 LSJS 197; Police V Pakrou [2008] SASC 364; Sedmak v Police [2008] SASC 307; R v Jacobi [2012] SASCFC 115; R v Keogh No 2 [2014] SASCFC 136; R v Prisk v Harris [2009] QSC 315 [25], applied.

R v GEBERT
[2020] SADC 19

The accused has brought an Application pursuant to Rule 49 (1)(d)(h) of the District Court Rules, seeking an order that count one on the Information of 4 May 2015 be permanently stayed. In the alternative, the accused seeks the exclusion of various items of evidence.
The accused has pleaded not guilty to Trafficking in a Controlled Drug. This is in relation to the discovery by police of 51.82 grams of alpha- pyrrolidinopentiophenone (alpha-PVP) during a search of a shed situated at 117 Princess Highway Murray Bridge, on 28 September 2012.
The matter has been before the court previously, with a trial before his Honour Judge McEwen between 19 March and 22 March 2018. A guilty verdict following that trial was overturned by the Supreme Court (R v Gebert[1]) and the matter returned to this court for retrial.
[1] [2019] SASCFC 37.
Stated briefly, the allegations are that the accused, while residing in the shed at Murray Bridge was in possession of a trafficable quantity of a controlled drug. That quantity of drug was found by police after they forced entry into the property pursuant to a search warrant and observed the accused crouching down underneath a desk. Police Officer, Detective Brevet Sergeant Thomson located the drug under the desk near where the accused was located. The location and seizure of the drug was witnessed by two other police officers, Detective Sergeant Daly and Detective Crowther. The drug was then given to another police officer, Detective Sergeant Murphy whose role it was to act as the exhibits officer at the scene, during the search and to record and photograph items that were found. He was also responsible for transferring the seized exhibits back to the Adelaide Police Station Exhibit Property Section (“ADPS”).
Detective Sergeant Murphy and Detective Sergeant Crowther gave evidence at the 2018 trial before Judge McEwen. Neither officer is now available to give evidence. Detective Brevet Sergeant Thomson did not give evidence at the trial before Judge McEwen and is still not available to give evidence at trial.
Destruction of evidence
The drug which was seized in the search and which is relevant to the charge before me was, on the prosecution case, provided with an exhibit number by Detective Murphy. That was exhibit number PHMB1. On return to ADPS Detective Murphy booked the drug into the Police Property Management System (PPMS) as exhibit 13-B56468-01. An exhibit with that number was subsequently transferred to the South Australian Forensic Science Centre for analysis, with the result forming the basis of the charge against the accused.
In addition to the drug that was found there were other relevant exhibits located within the shed being:
Exhibit 13/B56468-05 (PHMB4) – notepad. The prosecution case is that the notepad, of several pages, contained information indicative of drug trafficking in that it was representative of a ‘tick list’.
Exhibit 13/B56468-07 (PHMB6) – one metal imitation firearm. This firearm is accepted to be an imitation. The prosecution case is that the presence of the imitation firearm, is an indicia of drug trafficking as they are often used to scare away those who seek to steal the drugs from traffickers or cash from deals.
Exhibit 13/B56468-09 (PHMB8) – one Sony mobile telephone. Copies of text messages have been taken from this mobile telephone. It is alleged that the information contained in these text messages is indicative of drug trafficking.
It is common ground that all of these exhibits have been destroyed or released by Detective Sergeant Murphy following the expiration of the twenty-one-day appeal period following the accused’s original conviction on 18 May 2018. It is not suggested that these exhibits were destroyed other than as a result of a mistaken belief that the exhibits were no longer required.
The accused’s application
By his application, the accused seeks that the Information of 4 May 2015 be permanently stayed on the basis that he cannot have a fair trial without the exhibits being available, and with the unavailability of material prosecution witnesses.
Alternatively, the accused seeks an order that the Crown be prohibited from leading evidence as to the analysis of the powder in exhibit 13/B56468-01 upon the basis that they cannot establish the chain of evidence from seizure of the drug to analysis. The evidence is more prejudicial than probative.
In relation to the other exhibits that have been destroyed the accused seeks an order that the Crown be prohibited from relying on evidence relating to them, as they cannot be produced at trial and the evidence of those exhibits is more prejudicial than probative.
Application for a Stay
I will first consider the law in relation to an application for a permanent stay.
The court has jurisdiction to stay proceedings which are an abuse of process of the court. The leading case in this area is Jago v District Court of NSW.[2]At page 25 of that decision Mason CJ said:
It clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process (Clyne v NSW Bar Association, and Barton v R). Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction and that power includes power to take appropriate action to prevent injustice (Hamilton v Oades).
[2] (1989) 168 CLR 23.
Mason CJ continued at pages 33 and 34 to state:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. 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 that a trial judge can do in the conduct of the trial can relieve against its unfair consequences….’.
There have been several cases in which an application for a stay of proceedings has been considered when exhibits have either been lost or destroyed. In Whelan v Police[3] a glass door on which finger prints were detected was destroyed or lost sometime before trial. During the trial, an issue arose as to the position of the finger prints on the door and particularly whether they were on the outside or on the inside of the door, at the time of the offending. Photographs were not helpful and Gray J said that he regarded the evidence as ‘…relevant, probative and critical…’. He granted a stay noting that ‘…careful storage of crucial exhibits is an important component in the provision of a fair trial…’.
[3] [2005] SASC 205.
In an earlier case of R v Brambley,[4] there was a finding that the destruction of cannabis stopped the accused from proving the quantity of cannabis in his possession, and therefore from being able to prove that the amount in dispute was below the amount deemed to be a commercial quantity. That was held sufficient to justify a stay.
[4] (1998) 199 LSJS 197.
The consideration of an application for stay was considered by Kourakis J (as he then was) in Police v Pakrou,[5] quickly followed by Doyle CJ in Sedmak v Police.[6] In Sedmak v Police Doyle CJ said as follows:
… court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which it is commonly used. An important witness might die or fall ill, or be unavailable when a case comes to trial. One party might have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court… That is why I emphasise the power to stay proceedings is not to be a broached upon the basis of 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.
[5] [2008] SASC 364.
[6] [2008] SASC 307.
In R v Jacobi,[7] a matter which involved the ill-health of the accused, coupled with a long delay which had occurred since the alleged offences, Nicholson J from the Criminal Court of Appeal said at pages 117-121 that:
...in considering whether or not to grant a permanent stay of criminal proceedings a court must undertake a weighing process. I return to the guiding proposition set out in the joint judgment in Walton v Gardiner. The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the 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…
(it) is, therefore, not the case that any perceived unfairness will result in a permanent stay. It seems that at least three of the judges of the High Court in R v Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court and that there is an necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
The ‘balancing exercise’ referred to in the authorities, ordinarily will have work to do. The nature and extent of any perceived unfairness must be weighed against the public interest in an effort to determine whether or not a continuation of the prosecution, as Bleby J has put it, ‘will lead to oppression and injustice and thus is inconsistent with the recognised purposes of the administration of criminal justice…’.
In R v Polyukhovich Cox J observed that ‘a fair trial is not the same as a perfect trial’. The fact that unfairness, even irreparable unfairness, and whether or not it derives from delay, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice will not be constant across all criminal proceedings.
[7] [2012] SASCFC 115.
It is clear from these authorities that the onus of demonstrating the existence of facts which would justify the granting of a stay is cast upon the applicant. It is a very heavy onus. What needs to be proved is that there is such a fundamental defect, one that goes to the root of the trial, such that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
In considering the matter before me, I have to consider whether the evidence that is no longer available, either due to the destruction of exhibits or unavailability of witnesses, is evidence that goes ‘to the root of the trial’. If so, is there something that the trial judge could do in the conduct of the trial to relieve against its unfair consequences?
The evidence
The prosecution confirmed in submissions that police officers Thomson, Murphy and Crowther are not available to, or due to illness simply can’t give evidence at trial. That means that the police officer who found the drug under the desk in the room where the accused was located is not available to give evidence; the officer who performed the role of exhibits officer at the scene and who transferred the exhibits back to ADPS is not available to give evidence; and the police officer who witnessed the drug being found and who photographed the drug, is also not available to give evidence.
The prosecution submitted that these gaps in the Crown’s evidentiary case could be resolved by admitting the exhibits log annexed to the statement of Detective Sergeant Murphy dated 10 December 2012 as a business record, pursuant to s 53 of the Evidence Act 1929 (SA) (the “Act”).
Section 53 of the Act provides as follows:
(1)   An apparently genuine document purporting to be a business record:
(a)is admissible in evidence without further proof; and
(b)is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)    A document must not be admitted in evidence under subsection (1) if the court is of the opinion:
(a)that the person by whom, or at whose direction, the document prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)    For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)    In this section-
“business” means business, occupation, trade or calling and includes the business of any governmental or local government body or instrumentality;
“business record” means-
(a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b) any reproduction of any such record by photographic, photostatic, lithographic or other like process.
I find that the exhibits log is a business record. It is a document prepared to record exhibits in police investigations. This is matter relating to the business of policing and is the type of document that can be admitted pursuant to s 53 of the Act. I so find. I also find that the person by whom or at whose direction the document was prepared, namely a Detective Sergeant Murphy cannot give evidence due to him suffering from a serious illness for which he is currently undergoing treatment. That is not disputed by the accused.
I further find that the evidentiary weight of the exhibits log is significantly more than slight particularly in relation to exhibit PHMB1 being the drug that was allegedly found in the shed, under the desk. In relation to that drug, the exhibits log provides a link between the exhibit and its testing by the South Australian Forensic Science Centre regarding the nature of the compound contained within the powder. I find that the evidentiary weight of the log is not outweighed by the prejudice that may result to the accused. However, I find that the issue to be considered is whether it would be contrary to the interest of justice to admit the document into evidence.
Chain of Evidence
Counsel for the accused Mr Armstrong, took issue with what occurred from the time that the drug was found by Detective Thomson to the time it arrived at the ADPS. He submitted that that period of time is the missing link in the chain of evidence that takes the drug to the Forensic Science Centre. This cannot be cured without the three police officers involved being called to give evidence.
During the trial before Judge McEwen, Detective Daly, who is still available to attend court, gave evidence that he witnessed Detective Thomson search the area under the desk where the accused’s hands had been out-stretched when he first saw him. Detective Daly stated that Detective Thomson produced a plastic bag from under the desk with yellowish powder inside it, and showed it to him whilst he was in the room.[8]
[8] T41.18-22.
During his evidence Detective Daly was shown photographs 1 and 2 of photographs taken by Detective Sergeant Murphy. He confirmed that these showed the same yellowish powder that he had been shown in the room by Officer Thomson. He confirmed that it was the same plastic bag.[9]
[9] T41.21-28 and Exhibit VDD 7 on Rule 49 application.
Detective Crowther also gave evidence at the 2018 trial. His evidence was that he saw Detective Thomson emerge from under the desk holding an item which he described as a black pouch that had inside it a snap-sealed plastic bag with a yellow powder substance in it.[10] Detective Crowther also gave evidence of taking photographs of the plastic bag with the powder in it after it had been taken out of the black sunglasses bag. He did not have any recall of taking any particular photograph except that he was aware that he had taken a series of photographs of what Detective Thomson had found under the desk in the accused’s sleeping area.
[10] T177.37-T178.1.
I have been shown photographs of a plastic bag with yellow powder shown therein. The first photograph is number one in exhibit VDD7, which is next to a yellow envelope with the letters PHMB1 written on it. Next to that there appears to be a black sunglasses case. There is a shiny plastic bag, but it does not appear to have any powder in it. Photograph 2 of exhibit VDD7, is said to be another photograph of the powder found in the bag inside the sunglasses case. It is yellow in colour. Photograph 3 of exhibit VDD7 shows the edge of a plastic bag with a yellow substance in it.

I was also shown a series of photographs which form exhibit VDD8. The top photograph on page 7 is of a small snap-lock bag with yellow powder inside, and partially escaping from that bag.
In summary, in the absence of Detective Thomson the evidence of the two officers who were in the room with him when the relevant drug was found, have both given evidence that the drug was yellow in colour and was in one plastic bag inside a sunglasses case.
When he gave evidence at the 2018 trial, Detective Sergeant Murphy confirmed that photographs 1 and 2 to which I have just referred were of the drug brought to him by Detective Thomson. He clearly stated that the items in photograph 1 and photograph 2 were of the same item, that is that they were not two separate bags of drugs.[11] Detective Sergeant Murphy’s evidence was clear that he was not in the room during the search and he was reliant upon the officers bringing them to him so that he could in effect catalogue them by photographing and giving them a number.
[11] T82.16-22.
The exhibits log which the prosecution seeks to tender pursuant to s 53 of the Act was provided at the hearing before me, firstly as a hand-written log being VDP1 and as a typed exhibit log VDP2. In those logs exhibit PHMB1 being the drugs seized from under the desk, is described as “one press sealed plastic bag containing white powder’ (NIK Test turned green) in black glass bag”. This is signed off by Detective Sergeant Murphy as being true and correct. There is an immediate concern with that description in that it refers to white powder which would appear on the face of it to be different to the powder seized by Detective Thomson, given his evidence and that of Detective Daly that the powder was yellowish or yellow.
Detective Sergeant Murphy was responsible for transferring the exhibits from the area of the search at Murray Bridge to ADPS. Due to his illness further dealing with the exhibits was conducted by Detective Tait who was at the shed during the search, but in the lounge room and not in the bedroom area. He gave evidence at the 2018 trial that after taking over the stewardship of the exhibits from Detective Sergeant Murphy he attended at the ADPS several weeks later, as he had become responsible for decanting and submitting all exhibits for analysis by the forensic science centre. He confirmed that in accordance with normal procedure the exhibits had been booked into Police Property before that date. His responsibility was to remove the item from the initial container they were in so that that container could be examined for finger-prints, and the drugs placed in fresh packaging for transfer to the forensic science centre.
In relation to exhibit MHMB1 this process involved Detective Tait opening the yellow sealed exhibit envelope and removing the item from inside. His evidence was that upon opening the envelope for exhibit MHMB1 he found two bags inside and that each contained white powder. He then took the first bag with a set of gloves and a piece of paper and decanted the contents into a fresh bag and sealed it and repeated the process with the second bag.[12]
[12] T111.33 -T112.6.
This evidence is completely at odds with the evidence of the police officers who performed the search of the shed where the accused was living, who very clearly stated that what was found inside the sunglasses case was one bag of a yellow coloured substance. Not two bags of white powder.
That there were two bags of white powder delivered to the forensic science centre is confirmed by exhibit VDD9 an application for scientific examination. That records that exhibit 13/B56468-01 consisted of two bags of white powder.
Counsel for the accused submitted that I needed to be satisfied that the drug allegedly seized from under the desk in the garage, was the same item that was ultimately analysed by the forensic science centre. This was because the prosecution case was that the accused was either in possession or in some way involved with the drug found under the desk. He submitted that it could only be the drug under the desk if it was analysed as being such. The Crown had to establish that the drugs that were analysed, and the drugs under the desk are one and the same, otherwise the Crown case could not succeed on any basis. That was the chain of evidence that needed to be proved for the prosecution case to succeed.
Counsel for the accused was particularly concerned by what was shown in the photograph at the top of page 7 of the exhibit VDD8. That photo shows an open plastic bag of yellow powder that is spilling out. That photograph was tendered in the 2018 trial before Judge McEwen. Mr Armstrong submitted that in the absence of an explanation, it appeared that at some point the contents of the bag containing the powder had been compromised by it being opened. No explanation has been provided by any Crown witness in relation to that. Detective Murphy is now not in a position to explain that to the court, and in particular whether he saw the bag of yellow powder being opened and compromised in the manner suggested by Mr Armstrong, during the time that he was in control of the bag of powder as the exhibits officer.
Mr Armstrong also submitted that given the state of the bag of yellow powder as depicted by the photograph it could not be that the drug that was found under the desk was the same drug analysed by the Forensic Science Centre. He submitted that the bag of powder was either found under the desk minus whatever had spilled out, in which case it was not the same as what was under the desk; or if some attempt had been made to put the contents back in, there could have been contamination of the contents of the bag.
Mr Armstrong also noted that Detective Murphy’s evidence in the 2018 trial had been that once he took custody of the exhibits, they are sometimes moved particularly so that they can be photographed in situ. He submitted that on Detective Murphy’s evidence it was not as simple as exhibits being found and given to Detective Murphy for direct transport to the Adelaide police station. On his own evidence Detective Murphy confirmed that the exhibits were moved from place to place once they had come into his hands as exhibits officer as they needed to be photographed. That was often in the hands of other police officers.[13]
[13] T92.8 – T93.26.
Mr Armstrong submitted that based upon that evidence the court cannot proceed upon the basis that once the drug that had allegedly been found by Detective Thomson under the desk, and which was then moved from the bedroom to the exhibits officer, remained within the custody of the exhibits officer with the next movement being to the storage facility at the Adelaide Police station. That was not the evidence of Detective Murphy in the last trial, and Detective Murphy could not now be cross-examined in relation to that evidence and the movement of exhibits at the scene of the search or thereafter due to his illness.
Ruling
Having reviewed the evidence from the last trial I have great concern that it cannot be proved in the absence of the three police officers who cannot give evidence that the powder found by Detective Thomson in his search at the premises where the accused was found, is the same powder that was analysed by the Forensic Science Centre. The matters of concern are:
The different description of the powder, with two police officers clearly stating that the powder that was seized at the garage was yellow, yet Detective Tait stating that he decanted two bags of white powder before sending those samples to the Forensic Science Centre for analysis;
The photographs taken by Detective Murphy, and confirmed in his evidence at the 2018 trial of the powder said to have been found by Detective Thomson, which clearly show that powder to be yellow and not white;
The lack of any explanation in the evidence as to how one bag of yellow powder became two bags of white powder that were decanted by Detective Tait for analysis, given his evidence, that he removed the powder from a yellow exhibit envelope. This was the exhibit envelope described by Detective Murphy in his evidence; and
That is particularly so given Detective Murphy’s inability to give evidence at a future trial, and the impact upon determining that issue in his absence given that he was the person who transported the powder to the Adelaide Police Station. He would be in a position to explain to the court exactly his memory of what was transported. He cannot give that evidence.
If the exhibits log is admitted into evidence as a business record pursuant to s 53 of the Act then by s 53(1), the record is evidence of a fact stated in the record, or any fact that may be inferred from the record. This would mean that line 1 of the log, is evidence of the fact that exhibit number PHMB 1 being one press sealed plastic bag containing white powder in black glass bag was located between the desk leg and wall of the room that was searched within the garage.
The only person who can confirm that fact is Detective Murphy. I have been told that he is extremely unwell with cancer for which he is undergoing treatment. He has not worked since September 2018. This would normally allow the exhibits log to be tendered pursuant to s 53(2)(a) of the Act. I find that the evidentiary weight of the exhibits log is more than slight, as it will close the chain of evidence for the prosecution in relation to establishing that the powder that was analysed was the powder found by police between the desk leg and wall (s 53(2)(b)).
I must therefore consider whether it would be otherwise contrary to the interests of justice to admit the exhibits log into evidence. Counsel for the accused submitted that there was the possibility of a jury being inappropriately influenced by a written document said to be contemporaneous with the finding of the powder, when persons who contributed to the document are not to be called to give evidence. He argued that the difference between the description of the powder as yellow and being in one bag is very different to the description of the material sent for testing namely, two bags of white powder. He submitted that this was not a subtle difference but one that was significant and obvious. Being obvious on the photographs and on the evidence given in the 2018 trial. Counsel submitted that it was in the interests of justice for the accused to have a fair trial and that the exhibits log should not be admitted into evidence in lieu of precise evidence establishing the handling of the drug. He submitted that in the interests of justice the Crown should not be able to assert on the basis of a document alone, that the powder found under the desk was the same powder that had been analysed by the Forensic Science Centre. He argued that there are three material witnesses who could give evidence in relation to the issue, and none of them are to be called. The accused should be afforded every opportunity to challenge the link between the powder that was found and the analysis result.
The prosecutor in response confirmed that if the exhibits log was to be admitted into evidence then it must close the chain of evidence, as the document clearly outlines the location where the powder was found. That is the powder that was analysed. He submitted that the consideration of the interests of justice in s 53(2)(b) of the Act includes the interests of the community in ensuring that those who traffic in illegal substances are brought to trial.
In the full court decision of R v Keogh,[14] it was stated that the phrase “in the interests of justice” is of wide import and that it was not possible to set out an exhaustive list of circumstances in which the requirement will be satisfied.[15]
[14] (No2) [2014] SASCFC 136.
[15] At paragraph [116].
Martin J in R v Prisk v Harris[16] defined the term as follows:
The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.
[16] [2009] QSC 315 [25].
In the matter before me I cannot see how the accused can have a fair trial if the exhibits log is admitted into evidence as a business record. That business record closes the chain of evidence between a powder found on a search and the analysis of that powder as an illegal drug. The chain of evidence cannot be closed by evidence from the police officers involved as they are not available to give evidence. This takes away the critical opportunity of the accused to cross examine those officers regarding what took place after the seizure of the powder and in the transfer of it to the Adelaide Police Station. On the evidence before me it simply is not explained how the description of the powder changes from a yellow powder to a white powder. I may be less concerned if there was only one police officer who described the powder as seized in the search as being yellow. However more than one officer describes the powder found in the sunglasses bag as being yellowish or yellow.
I am concerned as to how the powder then becomes two bags of white powder as decanted by Detective Tait. This is not explained on the evidence before me. Detective Tait confirms in his evidence and his affidavits that he was not involved in the transfer of the powder to the Adelaide Police Station or involved with the powder at the garage when it was seized. He was only involved in decanting the powder once it had been transferred to the Adelaide Police Station and booked into the PPMS. There is a gap. I find that this is a critical gap in the evidence given the different versions of events that have been provided by the prosecution witnesses. It is my finding that it is contrary to the interests of justice for the exhibits log to be admitted in evidence as a business record. I find that in the absence of witnesses who can provide evidence as to the critical link between the seizure of the powder and its analysis, the use of the exhibits log as a business record would result in an unfair trial for the accused.
It was submitted by the prosecution that one way to resolve the difficulty would be to redact the exhibits log by taking out the column that sets out the location where the exhibit is found. I find that this would be inappropriate and outside of the intention of s 53 of the Act.
Section 53 of the Act provides a mechanism by which standard business documents can be admitted into evidence without the necessity of calling oral evidence as to how those documents were created. It can only be used where the person who created the document cannot give evidence. In those circumstances, I cannot accept that a genuine business record can be redacted to fit in with the situation where a witness is not available to give evidence. A redacted document is no longer a business record. It is only part of a business record, and in my view a redacted record is not what was intended by s 53 of the Act.
I find that the exhibits log cannot be admitted into evidence under s 53(1) of the Act.
As a result of my findings, I rule that as a result of the Crown not being in a position to call material witnesses at trial to prove the chain of evidence in relation to the final analysis of the powder comprising Exhibit 13/B56468-01, that the Crown is prohibited from leading evidence of that analysis.
I understand that the position of the parties is that if that was my ruling then it was accepted that the Crown cannot lead evidence as to the analysis of the powder located under the desk in the garage being exhibit 13/B56468-01, and that the Crown will not be able to establish the chain of evidence in relation to the location of the powder and its ultimate analysis as an illegal drug.
Stay of Proceedings
As I have noted in my opening remarks, the onus of establishing the right to a stay is a heavy onus for an applicant, and the discretion to stay proceedings should only be exercised in rare or exceptional circumstances.
The issue of a permanent stay of proceedings was not argued in full before me as counsel concentrated on the critical gap in the crown case, as a result of their inability to call material witnesses and also have the powder that had been seized analysed, it having been destroyed.
In the circumstances, I will not rule on the application for a stay. Having considered my ruling on the evidentiary issue, if the accused wishes to pursue a stay then I will hear further submissions in relation to that issue.