R v MARTIN - [2008] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARTIN
[2008] SADC 79
Reasons for Decision of His Honour Acting Judge Wilson
16 June 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Stay of proceedings
Accused to be tried for possessing methylamphetamine for sale - potential exhibits in the form of a set of scales, some plastic bags, and phone charger allegedly found near the accused were destroyed by the police pursuant to a destruction order - accused left without any practicable way of discharging the burden of proof cast upon him by the statutory averment provision - accused held to be deprived of the opportunity to have a fair trial - in addition, there was an absence of proof of the chain of evidence and there was late disclosure of prosecution's intention to rely on indirect evidence regarding the destroyed potential exhibits - Held: permanent stay of proceedings ordered.
Holmden v Bitar (1987) 47 SASR 509; Whelan v Police [2005] SASC 205, applied.
R v Williams (1992) 8 WAR 265; Duncombe-Wall v Police (1998) 197 LSJS 398; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; R v Seminara [2003] SADC 56; R v Griffin [2006] ACT Supreme Court Cases 77; R v Niesen and Stephens [2006] SADC 14; R v Ulman-Naruniec (2003) 143 A Crim R 531, considered.

R v MARTIN
[2008] SADC 79

In this Court, the accused faces one charge, on Information, of possessing methylamphetamine for sale. A second charge of possessing a firearm without a licence has been the subject of a plea of guilty entered in another Court.
A voir dire hearing has been held and an application has also been made for a stay of proceedings on the remaining charge (in count 1) insofar as it goes beyond an allegation of simple possession.
That application is made upon the grounds, in combination, that:
1.The accused has been deprived of the opportunity to have a fair trial because of the destruction, by the police pursuant to a destruction order, of the only evidence purporting to prove the accused’s commercial purpose or, rather, to disprove the accused’s claim that it was otherwise, namely, his close association, in a possessory sense, with a set of scales, some plastic bags, a personal alarm and a mobile phone charger, all allegedly found in grass in the backyard of Mr Jay Olley’s premises, through which the accused had been seen running on the occasion of the police raid on the premises at 33 Murrell Road, Para Hills.
2.There is an absence of proof of the chain of evidence regarding the destroyed evidence.
3.On 10 June 2008, the day before this trial was due to commence and for the first time, a witness statement signed by the interrogating officer in this investigation, Detective Senior Constable O’Malley, was furnished, the effect of which was that, for the first time (it was suggested by inference), the accused removed from his backpack the items that were located in the grass and threw them into the grass.
In the alternative, the accused, through his counsel, Mr Anders, seeks to have the remaining and secondary evidence that was produced at the eleventh hour, so to speak, (and certainly very late in the piece) excluded in the exercise of this Court’s discretion.
With reference to the destruction of evidence, I note that the occurrence has deprived the accused of the opportunity to discharge the statutory onus which, in the circumstances of this case, rests with him. The accused has been deprived of the opportunity to have the items, now destroyed, tested for fingerprints or DNA evidence, or tested with a view to showing an absence of connection or linkage between the destroyed items and other items clearly found in the accused’s possession.
It was argued on behalf of the accused that, notwithstanding the absence of bad faith on the part of the police, this is one of those rare instances where to proceed would involve an abuse of process. The police were negligent in their handling and treatment of potential exhibits. It was argued that fairness dictates that a stay be ordered.
The witnesses called during the voir dire hearing comprised Detective Senior Constable O’Malley (hereinafter called ‘Detective O’Malley’); Detective Senior Constable First Grade Amanda Newcombe and Constable Tobiasen.
Some agreed facts were placed before the Court and some exhibits were tendered. Exhibit A is a copy of the brief (and most inadequate) notes taken by Detective O’Malley on 14 December 2007. Exhibit B is a bundle of copy photographs; photographs 5 and 6 were marked to show certain positions. Exhibit C is a copy of Detective Newcombe’s notes taken as the exhibits officer. Exhibit D is a copy of the field receipt issued by Detective O’Malley, as the case officer, to Mr Jay Olley.
Constable Tobiasen and the crime scene officer located, in the grass in the backyard, a set of scales, some empty resealable plastic bags and a mobile phone recharger, (‘the items’). He handed them to Detective O’Malley, who was to hand them on to the exhibits officer, but, instead, he handed them to Constable Bishop-Spalding. The items were receipted to Mr Jay Olley, the occupant of 33 Murrell Road, Para Hills, and not to the accused.
In his statement dated 8 March 2007, there was no mention by Detective O’Malley of having, on the date in question and near where the accused had allegedly stopped just near the rear fence of the premises, seen some electronic scales and some small clear plastic bags.
In his statement dated 10 June 2008, Detective O’Malley mentioned, for the first time, that he ran to where he had seen the accused stop and that he saw some electronic scales ‘on the floor along with some small clear plastic bags’.
In his evidence given in this Courtroom during the voir dire hearing, Detective O’Malley said that he could only recall seeing, in the backyard, the scales, the bags and the recharger. He also said that the items were not presented to the accused or brought to his attention when he was being interrogated by Detective O’Malley. Detective O’Malley agreed that his notes did not make any mention of the items.
The items were entered through the police property management system, not under the name of the accused, in whose possession they were allegedly found, but under the name of Mr Jay Olley, who was the person who allegedly resided at 33 Murrell Road. The items were subsequently released and destroyed. The proceedings against Mr Jay Olley have been completed.
In his evidence, Detective O’Malley said that, as he had come around the side of the house, he had seen the accused come out of the back door carrying something in both of his arms. He moved towards the back fence. He [O’Malley] said that the accused ‘stopped briefly, turned towards him [O’Malley] his hand was inside a bag, he then turned around and jumped over the back fence’. None of this, Detective O’Malley agreed, was recorded in his notes.
In his evidence, Detective O’Malley agreed that there was no record in his statement of 8 March 2007 of the items he purported to see in the backyard. He was quite clear that he did not actually see those items being thrown, by the accused, to where they were allegedly located. Of significance was Detective O’Malley’s evidence to this effect:
Q.Again, was the handling of these exhibits recorded in your notes?
A.No.
Q.Was the handling of these exhibits recorded in your statement of 8 March 2007?
A.No.
Q.Was the handling of these exhibits recorded in your most recent statement?
A.No.
Detective O’Malley agreed that his notes do not contain a great deal of detail and do not cover all aspects of this investigation, including the handling of exhibits and including matters relevant to the connection between suspects and exhibits. He also agreed, when under cross-examination, that the quantity of methylamphetamine - now destroyed - found within Mr Jay Olley’s house was neither analysed nor compared for purity or otherwise with the quantity of methylamphetamine, also destroyed, allegedly located in the grass in the backyard.
Constable O’Malley acknowledged that there was ‘no reason’ why the police did not, before their destruction, analyse the items allegedly found in the grass in the backyard; namely, the scales, the unused plastic bags and the phone charger. He accepted that this was ‘obviously inappropriate’ and gives rise ‘to real concern’ that he had not made a single note as to the exhibits that he had handled in relation to this case. He accepted that he had made the first written record, as regards attributing the items to the accused, after they had been destroyed.
Detective Senior Constable First Grade Newcombe, the exhibits officer, testified to the fact - hearsay and therefore potentially inadmissible - that Constable Tobiasen had located and seized items 19 and 20, a set of scales and some plastic bags, in the rear yard but that Constable Bishop-Spalding had physically handed them to her. Her involvement in this matter was really limited to receiving and recording exhibits.
Constable Tobiasen testified to having taken photographs, at the scene, on 14 February 2007. He said that he was directed by Detective O’Malley to photograph various items in the rear of the premises and then bag them. He indicated, with a cross on photograph No.6 of Exhibit B, where he located various items.
It is an agreed fact that Constable Bishop-Spalding has been spoken to, that he has no note, that he has made no statement and that he has no recollection whatsoever of the handling of any exhibit.
It is also an agreed fact that, at some unspecified point after the items located in the backyard of 33 Murrell Road, Para Hills were seized and before they were handed to the exhibits officer, Detective Lock showed the items to Mr Jay Victor Olley, the sole occupant of that address, and that police had an intelligence report that contained information that 33 Murrell Road, Para Hills, held a suspected drug dealer exchanging drugs for stolen property.
A detailed consideration of the law regarding applications for a stay of proceedings and the consequences flowing from the destruction of evidence is not called for, as the principles are now well‑established. It will suffice for me to state that I apply the principles as established or applied, as the case may be, in Holmden v Bitar (1987) 47 SASR 509 per Cox J at pp.516-518 and pp.520-521; R v Williams (1992) 8 WAR 265 at p.277; Duncombe-Wall v Police (1998) 197 LSJS 398 per Lander J at pp.408-409; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 per Wicks J at pp.301-306; R v Seminara [2003] SADC 56 per Judge Herriman at pp.13-15; Whelan v Police [2005] SASC 205 per Gray J at pp.2-3 and 15-19; R v Griffin [2006] ACT Supreme Court cases 77 per Crispin J at pp.4-16; and see also, in a slightly different context, R v Niesen and Stephens [2006] SADC 14, a decision of Judge Clayton.
Relevant and important dicta in those decided cases are to be found in Holmden v Bitar at pp.520-521 and Whelan v Police at p.18.
In Holmden v Bitar, Cox J said (at p520):
As it was, however, the learned magistrate had evidence only of the deliberate destruction by the prosecution authorities soon after their seizure of the five tins that were the subject of the charge so that the respondent had no practicable way of discharging the burden of proof that was cast on her by the averment provision. There appeared to be no justification at all for the destruction of the evidence before the case had been heard. In those circumstances, and provided that he thought the respondent’s objection was sincerely made (that is, that she really wanted to have the contents examined or tested before trial) he was entitled, I think, to hold that the appellant had been denied a fair trial, that the destruction of the evidence, coupled with the effect of s86D, the deeming provision, had made the respondent’s position quite intolerable. In my opinion he was justified in treating this as one of the rare instances of a proved abuse of process and acting accordingly.
In Whelan v Police, Gray J said (at p18):
The destruction of the evidence in question gives rise to unfairness justifying a stay of proceedings. The absence of any bad faith on the part of the prosecution does not obviate the unfairness caused by the appellant’s lost opportunity to fully examine the evidence and challenge the prosecution case. As observed by Lander J in Duncombe-wall v Police, (at p.409):
“The intentions or motives of those responsible for the prosecution were irrelevant since a combination of circumstances can arise entirely innocently but, as a result, it would be oppressive to proceed.....”
In the circumstances of this case, the destruction or the obliteration of the evidence was such as to lead to unfairness and, in my opinion, was such as to justify a permanent stay of the criminal proceedings. There was nothing that could have been done to rectify or remedy the absence of the evidence.
It was the opinion of the majority in R v Ulman-Naruniec (2003) 143 A Crim R 531, cited and relied upon by Mr Morrison, that the public interest in trying people charged with criminal offences should yield to the public policy in favour of ensuring fairness only when continuation of the proceedings will lead to oppression and injustice consistent with the recognised purposes of the administration of criminal justice, and their Honours Bleby and Besanko JJ, forming the majority, distinguished inter alia and along with R v Reeves (1994) 122 ACTR 1 and R v Lord (1983) Crim LR 191, the decision of Holmden v Bitar.
In my considered opinion, Holmden v Bitar ought not be distinguished from the present case; in reaching that conclusion, I reject, with respect, the submissions of Mr Morrison to the effect that Holmden v Bitar is ‘completely distinguishable from this case’.
Mr Anders, in his submissions, said (at p.101 of the transcript): ‘Our position is that the evidence of these exhibits is central to the issue of sale, the purpose of possession’; (at p.104): ‘There is a real contest, your Honour might agree, in relation to the origin of those items. That is a side issue; essentially, it is not the heart of the issue. Significantly, before 10 June, this week, which had been the day listed for this trial to commence, the accused never received a field receipt; he had never been notified of any intention, by virtue of signed statements on the part of the prosecutor, to attribute these items directly to him. It is only on the eve of what was to be the first day of this trial that a signed statement is forthcoming. That statement comes at a time after these exhibits have been destroyed. DNA was taken from the accused and Jay Olley, their fingerprints were also taken and these exhibits, it would seem, were never analysed. The failure to analyse them is telling’; (and at p.105): ‘We can say, categorically, that the mobile phone charger was never compared with phones in the possession of the accused or Jay Olley. The plastic bags, neither the scales similarly, were tested for fingerprints and contact DNA ..... We were never afforded an opportunity to invite the prosecution to test those items because it did not appear there was any real contest as to who they might belong to. It was fairly open, on the evidence, that they came from Jay Olley, the occupant of the house. They were receipted to him and there were other items that were similar in nature found within the house. All of a sudden, on the first day of trial, and after the exhibits had been destroyed, the Crown seek to say that these items more likely came from the accused ..... The most significant arm of our argument relates to their destruction and the inability to obtain a fair trial as a result. There are secondary aspects to our argument and they relate to the Crown’s concession that they cannot establish the chain; (and at p.106): ‘The exhibits have done the rounds. They were not inspected by O’Malley when they were handed to him. Their origin is uncertain as a result. That uncertainty is amplified as a result of there being similar items found within the premises. There is an incomplete chain, it is as simple as that; they [the prosecution] cannot establish the handling of and the processing of those items (which have now been destroyed) from the backyard to the exhibits officer as a starting point ..... The most powerful arm of our argument comes from the destruction of these items of evidence upon which the issues in this trial may turn, at a time when we were not notified - they were never receipted to us or were going to be directly attributed to us, but, on the first day of trial, we’re told “Yes, they are going to be attributed to the accused; we say the accused stopped and reached into a bag” - it isn’t alleged to have been seen, these items being thrown by us ..... The Crown now asserts that these items emanated from the accused, never having previously brought them to our attention, and that was conceded; these items weren’t presented to the accused during his interrogation, and Officer O’Malley conceded that there was nothing in the depositions that sought to attribute those items to him; not a thing’; (and at p.109): ‘It is our submission - and this falls fairly from all of the authorities - that each matter has to be assessed on its own merits, on its own facts, and those facts here are a combination of destruction of evidence, police negligence, a failure to establish the chain and a late provision of evidence. These are the factors we say come into play. The existence of the deeming provision in this matter is of some considerable concern’; (and at p.116): ‘So we’re not seeking a blanket order in respect of all of the evidence involved in the investigation into this matter be excluded as a consequence of what we say is some fairly gross negligence and non-compliance with police standing orders, and the obvious and necessary requirements associated with the handling of exhibits’; (and at p.122): ‘We say that the police’s behaviour, with particular reference to these exhibits and other related exhibits, was gravely deficient’; (and at p.123): ‘Here we have problems that stem essentially from the fact that the officer, who purports to have first seen these exhibits in the rear yard and made these observations of how it was that they may have come to be there, takes no notes. There’s no written record of what’s occurred. That was obviously a deficiency that could have been avoided. It makes it much harder to challenge his evidence, ultimately, you are left with a vacuum’; (and at p.124): ‘The defence carries an onus of proof as a result of the deeming provision, and without these exhibits and without there having been analysed properly, either by the police or our being afforded an opportunity to conduct our own analysis, we are deprived of what might make the difference in this trial. The exhibits, as I have already stated repeatedly, weren't analysed by police and we can't know why that occurred. That fact is coupled with the very simple fact that the phone charger was never compared with the phones belonging to Jay Olley in the house, nor the phones in the accused's backpack. That was a very simple procedure that could have been adopted ..... This is a serious offence. There are very serious consequences that flow from this prosecution and, in those circumstances, it is incumbent upon police to retain exhibits and analyse them if they seek to rely upon them. We say we have been forever deprived of an opportunity to properly examine those exhibits and it is not the case, as it has been in some of the other decisions, where they have even been analysed by police and then lost; there is no analysis whatsoever, so ours is a more extreme situation of that in which the court was faced in many of the authorities I have cited and, indeed, where stays were routinely granted’; (and at p.126:) ‘It is incumbent upon police to do their job and do it properly, to treat the offender as they would hope they would be treated if they were placed in this situation ..... It shows a complete lack of respect for the accused and, ultimately, a complete lack of respect for this investigation and this Court, and the ability to secure a fair trial. I say that that failure, in respect of the exhibits, is telling in assessing O'Malley's evidence’: (and at p.127): ‘We're just left in this vacuum where we're effectively called upon to box at shadows ..... Detective O'Malley didn't disclose these observations in a timely fashion, that is comprehensively illustrated and admitted and, clearly, that raises a question mark as to the veracity or reliability of those observations, but it causes a concern as regards to proper disclosure and to timely disclosure of the Crown case, and that is one of the fundamental building blocks upon which a fair trial is built; that didn't occur here and it is accentuated dramatically by the fact that it occurs only after relevant exhibits, exhibits that are specifically referred to in the late disclosure, have already been destroyed’; (and finally at p.133): ‘The defence says that this loss of this evidence was as a result of no fault on the part of the defence. The evidence that is to be led on this topic is inconsistent, weak and incapable of being properly tested ...... The fact that the evidence has been destroyed deprives us of the possibility of being able to shed considerable favourable light on the ultimate issue in this trial and, indeed, we weren't advised of the significance of any of this until the first day of the trial. There really is, in our submission, no other mechanism by which the prejudice, which we were invariably going to suffer, can be alleviated.’

I am persuaded by those arguments.
For these reasons, and in the exercise of my discretion, an order is made permanently staying the proceedings insofar as they involve any allegation more serious than simple possession. There is no need to hear argument regarding the outstanding issues of admissibility of evidence.