R v Morgan - [2005] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v MORGAN
Reasons for Ruling of His Honour Judge Rice
21 July 2005
CRIMINAL LAW
Application for a permanent stay of proceedings - various complaints including that the police investigation was incomplete - adjournment granted to enable further DNA and other tests to be performed - submitted that police investigation was still inadequate such that the accused would be deprived of a fair trial.
Held: Notwithstanding the fact that the investigation was not as thorough or as timely as it should have been, the accused would not be deprived of a fair trial.
Supreme Court Criminal Rules rule 8, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1992-1993) 177 CLR 378; Williams and Others v Spautz (1992) 174 CLR 509; Penney v R (1998) 155 ALR 605; Question of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1; R v Prasad (1979) 23 SASR 161; R v Rowe [2004] SASC 424, considered.

R v MORGAN
[2005] SADC 88
Introduction

This is an application for a permanent stay of proceedings on the basis that its continuation would amount to an abuse of the process of the Court. The application is dated 8 September, 2004 and is made pursuant to rule 8 of the Supreme Court Criminal Rules. At the conclusion of the argument I refused the application and said I would deliver reasons later. I now provide those reasons.
A brief history of the matter is necessary. On Sunday, 28 January, 2001, the business premises of the Loxton News was broken into and a number of items stolen, particularly a digital camera, charger and lens protector, along with $2,863 in cash. A witness living near to the Loxton News saw a man leave the rear door of the premises and enter the left rear seat of a blue Ford waiting outside. The car, the motor of which had been revving loudly, immediately drove off at speed. The witness described the colour, make, model and registration number of the car. A car with a registration number very similar to that seen by the witness was registered to Mr Morgan. The police obtained an address for Mr Morgan of Danise Road, Barmera.
On that same Sunday morning the police attended at that address but Mr Morgan was not there. They knew of another address for him of 7 Gilchrist Crescent, Barmera. The car concerned was in the driveway of No. 7. Police enquiries at No. 7 took them next door to No. 5 Gilchrist Crescent. Mr Morgan was said by one of the police witnesses to be seen coming from the shed of No. 5.
A search of the shed led to the police stumbling upon what was referred to as a clandestine amphetamine laboratory. The police also located the camera, charger and lens cover which were later proved to have come from the Loxton News. Those items were found under the cushion of a lounge inside the shed.
The police took photographs, samples and exhibits from the Loxton News premises, particularly a piece of latex (possibly from a rubber glove) and a cigarette butt from near a safe that had been smashed open. Various items were taken from the blue Ford in the driveway of No. 7.
Mr Morgan was arrested that morning in relation to the production of amphetamine, as was Grant Schubert. Schubert was also seen by the police in the shed. Also seen by the police inside the shed was Augustine (Gus) Anderson, but he decamped almost immediately. Anderson was not arrested until 7 February, 2001 at which time he also was charged with production of the amphetamine.
From that point, namely 28 January, 2001, the two investigations proceeded together, the Loxton News and the alleged production of amphetamine. Mr Morgan was committed for trial for both, as were Schubert and Anderson. All three were said to have been in the garage at No. 5 along with a Chad Skerke. Skerke was a witness for the prosecution at the trial concerning the amphetamine production. Skerke had pleaded guilty and offered to give evidence for the prosecution. In due course, the prosecution filed an Information charging all three with a series of offences relating to the production of amphetamine, together with entering the Loxton News, larceny from the Loxton News and receiving as an alternative to both.
At a trial in late 2003, the trial Judge severed from the Information the three counts relating to the Loxton News. Other counts were the subject of nolle prosequis and the trial then proceeded with the count relating to the amphetamine production. It was at this trial that the man Skerke, who had been in the garage with the others at No. 5 Gilchrist Crescent, gave evidence for the prosecution.
When the jury was out considering its verdict at that trial, it (the jury) had to be discharged. The reasons are unimportant for present purposes. The amphetamine production charge did not proceed to a re-trial because, as I understand the situation, Skerke was not again prepared to be a prosecution witness and took flight. Eventually a nolle prosequi was entered on that count for all three.
That left the counts relating to the Loxton News. The prosecution also entered a nolle prosequi against Schubert and Anderson on these counts. In those circumstances the prosecution undertook further investigations and had additional DNA tests done. It certainly appeared to me that, although the two investigations were proceeding from Sunday, 20 January, 2001, that in relation to the Loxton News became the subsidiary investigation. As later voir dire evidence shows, the “laboratory had the main priority” (TP73).
Rule 8 Application – counts 12, 13 and 14 of Information 8 November, 2003, being all counts on Information 13 September, 2004
The matters raised in the Rule 8 Application are many and varied. Put generally, the grounds relate to an inadequate police investigation at a time close to the arrest of Mr Morgan despite his presence in custody and willingness to co‑operate; a significant delay in DNA tests for items found at the Loxton News and in the blue Ford which were only undertaken after the discharge of the jury in December, 2003; suggested prejudice that accrued against Mr Morgan, including the absence from the trial of Skerke, and a flouting of case management principles.
Some of the recently obtained evidence, which was inculpatory of Mr Morgan, was said to be “unfairly probative evidence”. I took that expression to mean that it was unfair to Mr Morgan that probative evidence was obtained after such a long delay and after the discharge of the jury at the joint trial on the production of amphetamine. That unfairness was said to be part of the basis for a permanent stay. No application was made to exclude that evidence. An alternative approach was put in this way:-
(6)In the alternative the prosecution case by being unfairly probative is therefore highly prejudicial to [Mr Morgan] and cannot be remedied by direction.
Some of these complaints are examined in detail below. It was submitted that the application relied upon an accumulation of unfair and irremediable circumstances. More needs to be said about attempts to remedy any possible prejudice to Mr Morgan.
Consideration of Rule 8 Application on 13 September, 2004 and subsequently
The matter came on for consideration of the Rule 8 Notice commencing on 13 September, 2004. After some discussion, I permitted a voir dire to explore one of the matters in the application, namely, why were only some items sent for DNA testing initially, why was a decision made not to continue with that testing and why was the testing resurrected. This inquiry was relevant to the reasons for delay and the suggestion that the investigating officers were “wilfully abstaining” from a line of investigation in the initial stages.
This inquiry was also relevant to another interrelated point, namely, what exhibits did the police have that had not, up to that point in September, 2004, still not been submitted for DNA or other testing.
Two witnesses were called on the voir dire, the crime scene examiner, Mr Milne, and Mr Cummins, who at that time was the officer-in-charge of the investigation into the offences at the Loxton News.
After that evidence was given, which included an acknowledgment that certain items had not been sent for DNA or other testing, Mr Ibbotson, who appeared for Mr Morgan, shifted ground. Rather than seeking a permanent stay at that stage, he sought to have additional tests undertaken on various items. Once those results (or lack of them) were available, he would renew or continue with his application. To that end, Mr Ibbotson applied for, and I granted, an adjournment. Although there were to be further directions hearings before trial, the date of 6 June, 2005 was set aside for the trial. Continuation of argument upon the Rule 8 was to be the first matter with which I would then deal.
Continuation of Rule 8 Application on 6 June, 2005
Argument on the Rule 8 Application resumed on 6 June, 2005. Additional DNA and other tests had been completed by that time. There was no further request for an adjournment. The matter was then argued on the basis of the available evidence.
As for the DNA tests, a further link was provided between Mr Morgan and the blue Ford in that a DNA profile matching his was found on an iced coffee carton located in the car. Similarly, a DNA profile matching Mr Schubert’s was found on an iced coffee carton located in the car. A DNA profile matching Mr Anderson’s was found on a cigarette butt from the car. A DNA profile matching Mr Morgan had been located on a piece of latex glove from inside the Loxton News by an earlier report dated 10 August, 2004. A partial DNA profile consistent with Mr Morgan had been found on a cigarette butt also located in the Loxton News as per the same report. Both of these results were available by September 2004 and provided some of the evidentiary support for proceeding against Mr Morgan when the Ex Officio Information of 13 September, 2004 was laid. (It was sent to the Court by letter dated 8 September, 2004.)
As for fingerprints, none had been detected so as to connect Messrs Morgan, Schubert, Anderson or Skerke with the Loxton News.
As for the possible transfer of paint or safe packing material to clothing or footwear, no evidence of transfer was detected.
Attempts to locate Skerke had again been fruitless. Clearly, the prosecution could not call him.
The prosecution had also indicated that it did not propose to lead Mr Morgan’s evidence from the first trial or any part of the questioning of Mr Morgan by the investigating police officers.
The additional tests did not provide any evidence that could be said to exculpate Mr Morgan. It did, however, provide a further connection between Mr Morgan and the blue Ford in that a DNA profile matching his was found on an iced coffee container in that car. It should be remembered that Mr Morgan’s case was that he had sold that car to Skerke some little time before the offence at the Loxton News and it had not been cleaned out before it was handed over.
The power to order a permanent stay
It is clear from a long line of cases that the Court has an inherent power to stay proceedings if their continuation would amount to an abuse of the processes of the Court. Those cases also make it plain that such a power should only be exercised in exceptional circumstances. The categories in which such an order could be made are not closed but include where the accused would not receive a fair trial: Jago v District Court (NSW) (1989) 168 CLR 23, Walton v Gardiner (1992-1993) 177 CLR 378. The onus rests on the party seeking the exercise of the Court’s power to stay and it is an heavy onus.
As to the general principles and their application, I quote from two authorities. In Williams and Others v Spautz (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ said this (at 520):-
In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, at p. 481 in a passage which Mason C.J. quoted in Jago (1989) 168 C.L.R., at p. 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.
Secondly, in Walton v Gardiner (supra), Mason CJ, Deane and Dawson JJ said this (at 395-6):-
As was pointed out in Jago (see, in particular, (1989) C.L.R., at pp. 30-34, per Mason C.J.; pp. 59-61, per Deane J.; p. 72, per Toohey J.; pp. 76-78, per Gaudron J.), 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.
Additionally, there is a need to refer to Penney v R (1998) 155 ALR 605 in the context of the submission that an inadequate police investigation would lead to an unfair trial and therefore justify a permanent stay. In Penney’s case, the appellant was convicted of the attempted murder of his estranged wife. One of the grounds of appeal to the High Court was that an unfair, inadequate and incompetent police investigation rendered the guilty verdict unsafe and unsatisfactory. The judgment of the Court in dismissing the appeal was given by Callinan J. His Honour acknowledged that, in some respects, the police investigation was unsatisfactory. The defects were exposed during the evidence, defence address and, to some degree, in the summing up. Callinan J dealt with the main submission in this way (para 18):-
[18] The appellant’s submissions on these contentions fail at the threshold. They fail because 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 of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial.
Later it was observed (para 20):-
[20] ....It could not be put by the appellant that had the investigation been conducted better there was a likelihood that evidence that might have exculpated the appellant would have been available.
The judgment refers to a number of cases that resulted in acquittals on appeal “....because the deficiencies in the investigation were so important that they operated in fact to deprive the accused of a fair trial” (para 21). In particular, if the investigating police officers “wilfully abstain” from interviewing witnesses likely to give evidence exculpatory of the accused, that has been held to be sufficient (para 21, relying upon an unreported decision of the SC(NT) on 29 May, 1997 of Boyce v Nunn).
It is difficult to draw from the judgment an accepted test for the assessment of whether an accused would be subject to an “unfair trial”. If the investigating police officers wilfully abstained from obtaining significant exculpatory evidence, that may be sufficient. Much would depend upon the circumstances.
The meaning of “wilfully abstained” is not explained. If a police officer deliberately omitted to undertake a line or course of investigation with a view to obtaining a wrongful conviction, that may well be sufficient. But, if a police officer failed to investigate because of incompetence, misunderstanding, oversight, inadequate funding or by virtue of the orders of a superior, that would be insufficient. I think it unwise to try to take the matter further and await an authoritative ruling from the Supreme Court.
Before dealing with the factual circumstances of the present case, I need to consider a suggested extension of whatever may be able to be extracted from Penney’s case. It was submitted that I could stay the proceedings if I considered that a conviction, obtained in circumstances of an inadequate and incomplete investigation, would be unsafe and unsatisfactory. I know of no authority to support such an approach. In fact, it is contrary to authority and principle. By way of illustration, assuming I was of that view at the case to answer stage, even then authority precludes me from stopping the case by a finding of no case to answer: Question of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1 referring to R v Prasad (1979) 23 SASR 161.
Application to circumstances of this case
Failure to undertake DNA tests prior to first trial in 2003
The prosecution went to trial in 2003 with an Information that included charges relating to the Loxton News. Ideally, all the DNA tests should have been done prior to that time but I find that the police did not wilfully abstain from that line of investigation or fail to order those tests for any improper motive. A combination of circumstances was at play that led to the tests not being done. Initially, the police appear to have accepted the view from forensic sciences that there was insufficient justification for proceeding with testing without a reference sample or samples. Secondly, the illness of one of the main investigating detectives caused aspects of the investigation not to be followed up when they should have been. And, thirdly, as mentioned, the Loxton News was not the first priority in the overall investigation.
There is no doubt in my mind that the police were acting bona fide at all times, although it must be said that the investigation was incomplete. The deficiencies in the investigation and the failure to comply with case management principles are not of an order that Mr Morgan is deprived of a fair trial.
One additional argument was put relating to the DNA. The further DNA testing suggested Anderson and Schubert were linked to the blue Ford. A nolle prosequi was entered for each of them relating to the Loxton News even though the prosecution had more evidence than it had for the first trial. It was submitted that it was then unfair to proceed against Mr Morgan alone for the Loxton News.
There was no relevant unfairness to Mr Morgan in those circumstances. Why the prosecuting authorities decided not to proceed further against Anderson and Schubert is a matter for them and cannot be used here in support of the application. The argument under this heading is rejected.
Absence of Skerke at trial
As has been mentioned, the prosecution did not propose to call Skerke at trial because of an inability to locate him to serve him with a subpoena. That was the position when the matter was first argued before me in September, 2004 and remained the position in June, 2005 when the matter came on for argument again. I received material that showed many unsuccessful efforts had been made to locate him.

It was submitted that the absence of Skerke meant that he was not available for cross-examination on behalf of Mr Morgan and that leads to an unfair trial. I note that Skerke’s name does not appear on the back of the Information charging Mr Morgan alone with the Loxton News offences. Skerke was called by the prosecution at the first trial.
A similar problem arose in the case of R v Rowe [2004] SASC 424. In that case one of the investigating police officers committed suicide during the course of the trial. Like here, it was submitted that the inability to cross-examine that witness meant that the accused was unable to receive a fair trial. For these purposes, the death of a witness or the absence of a witness, should be treated in the same manner. Besanko J, on behalf of the Court, after referring to various passages from Jago’s case (supra) said this (para 59):-
We were not referred to any authority in this State dealing with unfairness said to arise as a result of the death of a witness. I think it can be said that the mere fact that a material witness for the prosecution or the defence dies before or during a trial does not lead to the conclusion that the trial is an unfair one. Something more is required. Cases decided in New South Wales suggest, for example, that the death of an important witness for the accused during an unreasonable delay in bringing the proceedings to trial caused by the prosecution may result in the conclusion that any subsequent trial of the accused will be unfair (Gorman v Fitzpatrick (1987) 32 A Crim R 330; R v Sams (1988) 36 A Crim R 245). Nevertheless, generally speaking the fact that a witness who is potentially able to corroborate an accused dies before he is able to give evidence does not lead to the conclusion that the accused cannot obtain a fair trial (R v Adler; R v Goldburg; and R v McCarthy).
Besanko J went on to say (para 61) that the starting point was to identify those areas in which the witness would or may have been cross-examined on behalf of the accused and the significance of those matters against the accused.
The case for Mr Morgan is that he was not an offender because he and Schubert, at the time of the offences, were at or were returning from an area under the Kingston Bridge where they had been since the Friday evening. On that basis, Skerke, Anderson and possibly one or two others, were the true offenders. It was submitted on behalf of Mr Morgan that he was denied the opportunity to cross-examine Skerke to suggest he was one of the offenders and that he (Mr Morgan) and Schubert were not.
That suggested line of cross-examination must be considered in light of what Skerke said at the first trial. Although the charges relating to the Loxton News had been severed, Skerke gave evidence that on the Sunday morning he did not get out of bed until “....probably 7, 8 o’clock” (TP1960). He went to the shed and Mr Morgan was one of those present. The evidence then focused on the alleged amphetamine production.
Presumably, Skerke would deny any knowledge of the Loxton News offences. Even if he was discredited in that regard, that would go to his credibility and could not be elevated to positive evidence that he was involved. Furthermore, even if Skerke was involved, that did not mean that Mr Morgan was not involved or render that possibility more likely.
In my view, the inability to cross-examine on this topic was not significant. I also note that there was no submission to me that part of Skerke’s earlier evidence go in as part of this trial.
Another related topic identified was that Skerke could not be cross‑examined to give Mr Morgan an alibi. This topic for cross-examination arises from evidence given by Skerke at an earlier stage that Morgan was present at Gilchrist Crescent, Barmera between 6.30 and 7.00 a.m. It is common ground that if that was so, neither could have been an offender at the Loxton News. However, that evidence would be contrary to Mr Morgan’s own evidence at the first trial that he arrived with Schubert at Gilchrist Crescent (from the Kingston Bridge) at about 9.00 a.m. (TP2394). Anything Skerke could say on the topic would be contrary to Mr Morgan’s own evidence. Further, it is evident from Skerke’s evidence that he was unsure what time he woke up and saw Morgan at Gilchrist Crescent. Mr Morgan lost nothing of significance on this topic.
A further topic for cross-examination related to the ownership of the blue Ford. As mentioned, Mr Morgan’s case is that he had sold it to Skerke and that he was in possession of it even though he had not paid the full purchase price. It was also common ground that it remained registered in Mr Morgan’s name. However, the actual ownership of the blue Ford was certainly not central. The really important feature of the blue Ford was that it was not parked in the driveway of No. 5 (that Skerke occupied) but in the driveway of No. 7 (occupied by Mr Morgan’s former partner). Even though the changed ownership of the blue Ford would render it more likely that it was in Skerke’s possession, the offences at the Loxton News, on all the evidence, were committed by three, maybe four people. Ownership and possession of the blue Ford in Skerke would have been of little assistance to Mr Morgan in the context of the case.
One final matter concerning Skerke. It was submitted that, if Skerke was present at this trial, his DNA could have been obtained to compare it with the results already obtained. It was not explained on what legal basis anyone could now obtain Skerke’s DNA. Many of the submissions on this and other topics amounted to rampant speculation.
Failure to investigate evidence of alibi
A further deficiency in the police investigation was said to be a failure of the police to properly investigate his suggested alibi. Mr Morgan’s case was that he was at or near the Kingston Bridge at the time of the offences and that he told the investigating police officers of that when they attended at Nos. 5 and 7 Gilchrist Crescent on that Sunday morning. It was said that the police officers should have taken soil samples from his utility (that he said he was driving) and from below the Kingston Bridge, where it was said to be wet and muddy, and have the two compared. It was said they should also have looked for tyre tracks below the bridge and compared them with the utility’s tyre tracks.
There are a number of answers to this submission. The first is that the police officers did investigate his suggested alibi by asking his former partner who lived at No. 7. She provided information to the police that refuted his suggested alibi. Secondly, the matching of soil samples and tyre marks would not have proved he was at the Kingston Bridge at any particular time. It would not have given him an alibi. (In any event, the photographs of the utility showed it to have very clean tyres.) Thirdly, there was no obligation upon the police to further investigate his suggested alibi. No proper criticism could be levelled at the police investigation in this regard.
Failure to undertake an identification parade
Mr Morgan was taken into custody on the morning of Sunday, 28 January, 2001. He remained in custody for about six weeks. At an early stage whilst in custody he was asked whether he would participate in an identification parade. He agreed to participate. However, it is not clear to me whether any potential witness of identification was then known to the police or became known to the police at a later stage. The witnesses to whose statements I was referred did not claim an ability to be able to recognise anyone from the scene at the Loxton News or associated with the blue Ford when it stopped at the Mobil service station at Berri. (A receipt found by the police in the blue Ford showed items had been purchased from the Mobil at Berri at 6.52 a.m. on Sunday, 28 January, 2001.)
Despite the police request to Mr Morgan while he was in custody, I have not been shown any material that would call for actually embarking upon an identification parade. There was no call, in those circumstances or at all, for an identification parade. There was no obligation upon the police to conduct an identification parade in any event, even if someone claimed to be able to recognise a potential offender. It would have been relevant to the possible use of photographs, but no such evidence was proposed to be led at trial. No proper criticism can be made of the police investigation in this regard.
Conclusion
I have dealt with the major arguments in support of the stay. I have considered those and the other matters referred to by Mr Ibbotson. I have acknowledged that the investigation was not as thorough or as timely as it should have been. However, considering all matters, both individually and collectively, in my view Mr Morgan would not be deprived of a fair trial.
The application for any form of stay is refused.