R v Mitchell

[2011] QDC 253

[2011] QDC 253

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE R JONES

Indictment No 1467 of 2011

THE QUEEN

v.

MARK ADRIAN MITCHELL

BRISBANE

..DATE 20/10/2011

RULING

HIS HONOUR: This proceeding is concerned with an application pursuant to section 590AA of the Criminal Code of Queensland. The relief sought is that counts 2 and 3 of the indictment, the applicant faces, be stayed indefinitely.

The applicant faces a number of charges arising out of the alleged theft of a boat and its trailer.  The offences on the indictment against the applicant are, count 1, stealing a boat, contents and trailer; count 2, unlawfully possessing a vessel; count 3, unlawfully possessing a motor vehicle, namely, a trailer; count 4, arson of the boat and the trailer; count 5, stealing various boating equipment and marine accessories and in the alternative, count 6, receiving tainted property with circumstances of aggravation.

As I said, this application is concerned only with counts 2 and 3. 

Paragraphs 4 to 10 of the respondent's outline which was not challenged sufficiently outlines the factual background to this application.  Those paragraphs relevantly se out that the complainant owned a boat which, on the evening of 27 September 2009, was parked on the trailer in his driveway.  When he woke the next morning, the boat and trailer were missing.  The applicant's de facto at the time had previously heard the applicant and one, Dane Horn who is or was a co-defendant in respect of these offences discussing stealing a boat that the applicant had apparently had his eyes on for some time. 
The applicant's ex-de facto says that on the evening of the 27th of September 2009, the applicant and Horne left the house for about 20 or 30 minutes and then returned pulling a blue boat into the garage.  She also says that the boat remained in the garage for a few days until the applicant and others wheeled the boat and trailer out and when he returned to the house, told her that he had set fire to it.

It would also appear that at least one neighbour observed the applicant and other males pushing the boat on the trailer, the boat being then filled with rubbish, some distance from the applicant's residence to the end of a street where petrol was poured over the rubbish in the boat and then ignited by the applicant and/or one of the other males who assisted in removing the boat from the garage.

Paragraph 5 of the written submissions on behalf of the applicant sets out the applicant's position.  It provides, "The direction is sought in circumstances where evidence has not been collected or has been forensically destroyed.  The defendant has been deprived of the following evidence.  (a) Forensic destruction of the trailer such that the physical state of the trailer can no longer be relied upon to show the impossibility/improbability of the allegation that the trailer was pushed along the sloping driveway into the garage.  And (b) Failure to take photographs or a video of the execution of the search warrant so that absence of marks on the driveway (such as recorded on the roadway) or other physical evidence, could be used to refute the allegation".

As I understand it, sub-paragraph (b) of paragraph 5 of the applicant's written submissions were not pursued so much as a separate ground for the granting of a stay but for a proposition to the effect that in the absence of evidence of the type identified in sub-paragraph (b), the prejudice caused by the destruction of the trailer cannot be overcome.

As I have already indicated the prosecution intends to lead evidence from the various witnesses to prove that the applicant and Horne pushed the boat and trailer into the garage of the applicant.  Paragraphs 12 to 14 of the written submissions filed on behalf of the applicant, really go to the heart of the applicant's case.  They provide, "The presence of the trailer in the garage is essential to establish possession by the defendant of the boat and trailer as alleged in counts 2 and 3 of the indictment.  Had the trailer been preserved as evidence, it would have been possible for the defence to (a) seek a direction for a view of the trailer and for the problems inherent in the account of Jacobson to be explored in cross-examination and physical demonstration to the jury". 

Jacobson is the ex-de facto of the applicant.  During argument, no attempt was made to describe the nature of the demonstration referred to in the written submissions. 

There is no dispute about the applicable law. In Dupas v. The Queen 241 CLR 237, the High Court at paragraph 18 referred to a passage from an earlier decision of the High Court in the Queen v. Glennon 173 CLR 592 as being an authoritative statement of principle. The statement in Dupas was specifically concerned with pretrial publicity but the general thrust is relevant. In paragraph 18, in Dupas, the High Court referred to the following passage of Glennon. "A permanent stay will only be ordered in an extreme case and 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'."

In Jago v. The District Court of New South Wales 168 CLR 23, Chief Justice Mason referred to the power to stay criminal proceedings being used in only the most exceptional circumstances and where there is a fundamental defect which goes to the root of the trial of such a nature that the trial Judge cannot relieve against its unfair consequences.

In response to the applicant's argument, it is submitted on behalf of the respondent that there is really nothing unusual about property which is the subject of charges either being not available or in a different form by the time matters come to trial. In that context, I was referred to the decision of the High Court in the Queen v. Edwards 255 ALR 399405 where it was relevantly said, "Trails 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".

However, it always needs to be borne in mind that in respect of criminal proceedings, the touchstone in every case is fairness to the accused. 

In this case, at least as outlined before me, two witnesses, the co-defendant Horn and the applicant's then de facto have given statements and will give evidence that the applicant and Horn manhandled the boat and trailer into the applicant's garage after they were stolen.  Another witness, a neighbour, will give evidence to the effect that on or about 10 October 2009, she saw the applicant and other males pushing the boat and trailer over the gutter in front of the driveway of the applicant’s house. 

It is submitted on behalf of the applicant that the destruction of the trailer prevents or unfairly limits the defence in the rebuttal of the accounts given by those witnesses, particularly Horn and the ex-de facto. That unfairness, by reference to paragraph 13A of the applicant's written submissions, is to prevent a view of the burnt out trailer as it was before being changed or altered by a Mr Mair.  According to the applicant, Mr Mair made changes to convert the trailer from a boat trailer into a motor bike trailer, removed the galvanising from the trailer with an angle grinder and removed the mud guards.  Probably, more relevantly, Mr Mair also removed the original axle wheels and tyres and replaced them with a second-hand and different axle wheels and tyres. 
As the argument progressed, it became tolerably clear to me that the real issue centred around the ground clearance of the trailer.  Mr Mair would be able to give evidence about the dimensions of the trailer as it now is and also, about the nature and the extent of the changes he made to the trailer's dimensions, if any.  But it may be unlikely that he could shed any real light on the ground clearance of the trailer in its original condition.  I should note here that the complainant might also be likely to give, at least, some evidence about the dimensions of the trailer.

The difficulty I have with the application is discerning how the applicant would suffer an unfairness due to the loss of opportunity for the jury to view the trailer.  Leaving aside the question of whether the trial Judge would have agreed to a request for a view, I fail to see how a jury when properly instructed about the purpose of a view, could be any better off or materially differently informed about the dimensions of the trailer including its ground clearance than it would be by reference to the photographs of the burnt out trailer supplemented by the evidence of Mr Mair and probably also, the complainant.

As I said previously, no description of the demonstration referred to in the written submissions of the applicant was given, and given the state of disrepair of the trailer after its burning, I find it difficult to imagine what meaningful demonstration could be given as to its physical capacity and capability prior to it being destroyed by fire.
In this regard, I note that the prosecution has expressly stated that it will call Mr Mair to give evidence about the matters to which I have referred, if requested by the defence.

For the reasons given, I do not consider that this is a case where to proceed to trial on the evidence as it now stands would be to deny the applicant a fair trial in respect of counts 2 and 3.  Accordingly, the application is dismissed. 

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