R v Seminara No. DCCRM-02-383

R v Seminara
[2003] SADC 56
Judge Herriman
Criminal

By an application filed on 24 February 2003, the accused has sought a permanent stay of the information herein on grounds as follows:
“The persistent failure by the Director of Public Prosecutions to provide telephone records related to text messages sent by the alleged victim”.
By a cross‑application filed on 4 April 2003, the Director has sought an order that the accused’s application be struck out or dismissed upon the grounds that it was vexatious, frivolous or an abuse of process in that it did not identify circumstances “which could have the capacity to enliven the Court’s discretion to stay the proceedings”.
I heard both applications together and there follow my reasons for upholding the accused’s application.
In order to understand the issues, it is necessary that I recount the history of the matter.
It is common ground that the accused and the alleged victim, whom I will refer to as “M”, had been in a de facto relationship since 1998/9. It is not disputed that the relationship was a tempestuous one and was “on and off”. It was characterised by violence and, indeed, the accused has pleaded guilty to assault of M, occasioning her actual bodily harm, on the day on which it is also alleged he raped her. For his part, he says that she was also violent towards him, but she does not concede that.
There is then a direct conflict as to the status of their relationship as at the date of the alleged incident, 15 January 2002. On M’s account, she had terminated the relationship two weeks earlier and there had been no sexual contact between them in that time, albeit that she allowed there had been, and she had initiated, telephone contact between them, including the exchange of text messages.
On the accused’s account, they were still in a relationship on 15 January, although not living in the same house, and he was saving money for a unit in which they could live together.
Separately from this and shortly before the beginning of January 2002, there had been an incident following which both she and the accused had been arrested over allegations of assault against a third party. On the accused’s account, it had arisen out of a complaint made by M that the third party had indecently assaulted her. At all events, it was common ground that, as of 15 January, the accused and M were on bail in respect of this matter and, although there was no direct evidence of it, it would appear that one of the conditions of that bail was that they not contact each other. At a later time, each pleaded guilty to that offence.
The 15^th January 2002 was the accused’s birthday. On M’s account, given on 19 January 2002, she had seen him in the street some two days before and he had harassed her then and since with telephone and text messages. Early in the morning of 15 January, he had driven into the street where she was living, called her on his mobile and sent her text messages containing threats.
Later that day, she had gone to the doctor. On her account, when walking there she was passed by a number of cars containing men. She thought they were associated with the accused. The accused then called her on her mobile. He was abusive and demanded she come to his house immediately. She tried to call back to say she was going to the doctor, but to no effect, so she sent him a text message, telling him to stop sending his friends in cars to follow her, but to come and get her himself.
After she left the doctor’s surgery, the accused again called her. She told him she would not be long arriving there. She then walked to the front door of his premises at 27 County Street, Hillcrest, was invited inside and went in.
She then described a series of incidents which culminated in the accused assaulting her. After the assault, she had a brief opportunity to telephone the police for help, and did that. Upon being told that she had telephoned the police, she said, the accused became violent again and raped her. When the police arrived, she did not immediately tell them about the rape, but later mentioned it to the ambulance driver.
For his part, the accused has pleaded guilty to the charge on the information of assault occasioning actual bodily harm, but denies the rape charge, saying there was consensual sexual intercourse between them, albeit not having been asked, nor saying, in what order those events occurred.
The accused was interviewed by Detective Pettinau on the rape charge on 21 January 2002, some six days after his first interview on the assault matter. I will refer to particular aspects of that later interview, which I will identify by reference to the cited question numbers:
- Q33 and following
The accused had previously said he had had a very late night on 14/15 January and was woken by M’s knock on the door at 2.00 or 2.30 p.m. on 15 January. He said he challenged M to the effect that she was not supposed to be visiting him, but she said it was his birthday and she came to see him and to “make love”. He said that there were messages on his telephone service disclosing that M had been ringing him before then, saying that she was coming to see him. In the course of his answer to Q33, he commented to the interrogator, “... got messages on there to prove it”, indicating, as I take it, that there were either text or recorded voice messages which the police officer might read or listen to.
- Q47 and following
In Q47 and following, it was put to him that on 15 January, being his birthday, he had sent a text message to her to the effect:
“okay, do you want me to kick your door or are you going to - you’re a liar and you know it cop lover.”
In response, the accused invited the police officer to nominate the mobile number from which the message had come. Whilst this was not a direct response, it was common ground that the accused had three mobile phones, one of which was used by him, another by M and the third by her daughter. His response was thus not necessarily unreasonable, but Pettinau apparently chose not to further pursue that issue.
- Q55 and following
It was put to him that on 15 January, at about 9.30 p.m., he had spoken to M about bail papers, but he denied that and said:
“Whatever check my phones I got two phones check them I don’t give a shit mate I’m telling you the truth no.”
- Q66 and following
The accused was being asked about M’s visit to his premises on 15 January and said she had knocked on the door, whereupon he had told her she should not be there. She said she had come to see him for his birthday. He said to Pettinau that he had deleted some of his text messages on his mobile, but some remained. He said:
“Do you want to see the messages she sent me and then she asked me to leave them all why?”
Pettinau then asked to see them, whereupon the accused appeared to read into the interview some of the words from his mobile phone screen, commenting about one call to a person at Elizabeth CIB: “if you don’t believe me give him a call yourself okay”.
One message included ‘Come and see me yourself’, he observing “I don’t know what that was about ...”.
He was asked whether M was, by these messages, responding to things he had sent her. He replied (Q70):
“She is sending things to me first and yeah and then ‘I’ll be there soon’ okay now this ... this was 15^th of January, 1.05 I was asleep the phones inside.”
He went on to discuss another message, to the effect:
“‘Who ever you got to phone me can see me for yourself I don’t need your boys I’ll get to the bottom of this how dare you accuse me of’” (unfinished).
It is not clear from the interview whether all of the messages on the accused’s mobile were read onto the record and, indeed, whether what was read was a full or complete record of what was on the screen.
- Q146 and following
The accused was challenged with having sent a text to M after he had appeared in court on 16 January, saying “I’ve got bail”. He did not deny that, but said that text was meant for his brother and confusion arose over the recipient because there were two telephones.
- Q148 and following
Pettinau then challenged him in these terms:
“You didn’t keep your promise not to me because when you went - you again breached your bail”
The detective went on then to suggest that he telephoned M on 17 January. His response was that she had called him.
There was then a lengthy exchange in the interrogation, in the course of which the accused acknowledged that he had telephoned M, but only after she had called him on three occasions. He then contended that she had been attempting to set him up because the police had been at her house when he had called her back and they had heard him on the phone.
At Q155, Detective Pettinau says:
“Q155Well irrespective of [M] does (sic) I’m interested in what your doing and when it says do not contact her because I’m interviewing you.
AWhy - her ... tell her the same thing please - tell her the same thing”
- Q158
Pettinau says that she is interviewing him and not M and she is interested in what he has done in terms of breaching his bail. He repeats his claim that he was trapped into ringing her back.
- Q174
Detective Pettinau:
“Q174I was present prior to her ringing and she didn’t speak to anyone saying she was going to ring anyone.
AGet her mobile phone go check and she rang me from her phone she says I’m running out of credit okay go check that and if you don’t think ring up the Telstra thing and they will tell you the last five numbers you’ve dialled.”
...
Q176I’m only interested in the phone calls that you’ve made.
AI made - she starts it.
Q177I’m not interested in what she does.
AShe’s entrapped me. Its entrapment she comes to my place makes love and calls rape that’s a trap. Rings me up the next day blah, blah wants to make me ... and your there that’s a trap what game is she playing.”
(emphasis is mine)
That was, then, the status of matters in the days leading to the accused’s arrest.
At this point, says the accused, Pettinau, as the investigating officer, was put on notice of these things:
(1)that there was a direct conflict between what M and the accused were saying as to the status of their relationship as of 15 January;
(2)that, contrary to M’s assertions, the accused was saying that phone calls and text messages were, in the period immediately preceding the incident of 15 January, initiated by M and not by him;
(3)that there were text messages on each of the mobile phones being used by M and by the accused which covered matters relevant to:
(a)the nature of their relationship, and
(b)her reasons for coming to his house on 15 January;
(4)that there were other telephone contacts between them which might have assisted the investigating officer’s enquiries as to who was initiating or pursuing contact and as to the nature of their relationship.
On 25 March 2002, Pettinau and M attended the DPP’s office and M there displayed on the mobile used by her, some six messages which she said had come from two mobile numbers used by the accused. It is not apparent from the declarations that the origin of those messages was ever established, but these things can be said about them:
(1)the accused appeared to accept in his interview that the one dealing with bail came from him by mistake;
(2)most of them seem to imply the existence of some ongoing communication between the parties.
It is, however, common ground that Pettinau did not then take steps:
(1)to formally and exhaustively record the text messages appearing on the accused’s phone at the time of the interview and which he said emanated from M;
(2)for over six months, to seek access to all mobile telephone records indicating the origin and destination of calls and text messages allegedly made between the parties in the days leading up to and including 15 January;
(3)for over six months, to seek access to the content of any such text messages.
It was suggested to her that she did not follow up with those enquiries because, as appeared from the record of interview, she simply did not believe what the accused was telling her and was not interested in any mobile contacts initiated by M. She denied her failure was for these reasons, saying:
(1)that her statement to the accused that she did not believe him had been cut off and incomplete - I was not much impressed by that answer;
(2)that she did not believe the accused’s account of M’s contact with him was “the only thing that was happening”;
(3)apparently, as I understood her, that she considered the relevance of phone contact was only as to potential bail breaches, hence telephone checks were not available to the police as such were not substantive offences. This answer was a rationalisation which I found disingenuous, at least in so far as it related to telephone contacts on or preceding 15 January 2002;
(4)that she did not then know that she could access text content;
(5)that she did not then know that full text records were available for a limited time only;
(6)that her delay between January and August 2002 in instituting formal enquiries was because she had gone on long service leave and nobody had taken over her case. I should say I found that to be a quite unsatisfactory and unconvincing response.
She agreed that her duty as an investigating officer included gathering any evidence which might support or disprove a criminal allegation and that she had been told things by the accused which contradicted M’s account and which she could have checked there and then, but she did not.
In the event, her failure to pursue such enquiries had important implications which did not emerge until this matter approached trial, for the third time, in January of this year.
In the intervening time, a number of procedural events occurred and upon which the accused relied. I will recount them in conjunction with the evidence and affidavit of the accused’s solicitor, Mr Longson (VDD1).
Peter Longson
In evidence, Longson said that he first saw the accused at the end of the first week in February 2001, principally in connection with other matters, but these charges were also then mentioned.
He did not then seek to take instructions from the accused as to them because his practice with all major indictable offences was to delay that process until all declarations had been received and considered. The accused, he said, was keen to tell him about the matter, but he preferred to wait until the declarations were available. In fact, those declarations were received in early March. In the meantime, the accused had remained in custody and Longson had brought unsuccessful bail and bail review applications.
He visited the accused in the Adelaide Remand Centre in early March and provided him with the complainant’s statement, going back there a week afterwards to obtain instructions. He thought that that consultation had taken place in the third week of March. His instructions then disclosed that there was a significant divergence between the allegations made by M and what the accused was telling him. In particular, the accused raised as a major issue the question of access to mobile telephone and text records which he considered would support his version of events. Longson was instructed to obtain them. He, too, appreciated their significance, having read the record of interview and spoken to the accused.
In consequence of those instructions, on 7 May 2001 (Ex. “PAL1”), he wrote to the DPP Committal Unit in terms seeking “the telephone records for all mobile telephones held by [M] ... for the days 15^th, 16^th and 17 January 2002”.
He was asked why it was that he had delayed for six weeks in making that request and said his reasons were twofold:
(1)because he did not regard the procuring of those records as essential for the purposes of the committal, scheduled for 4 April; and
(2)because he was told by the committal officer at Holden Hill Magistrates Court that the matter “might not run”, that they had to go back to M for further proofing.
He was cross‑examined about that aspect of his evidence and about why he had not contacted Telstra directly himself. He said that his practice with such matters was always to go to the prosecution, in the first instance, to see whether the records could be obtained and, indeed, he had expected, at that time, that they might already be in the prosecution’s possession.
He agreed, in cross‑examination, that his client had raised both telephone call and telephone text messages with him, albeit he allowed that his letter of 7 May did not, itself, make that distinction. The obtaining of that information was, he said, part of the preparation of the defence case. He had previously obtained aged telephone records in other matters, but had not had occasion to seek SMS text information. He had assumed that Telstra would have it. He had not pressed the Committal Unit, itself, for the information because it was not a priority for the purposes of the committal and could wait until the file came to a solicitor at the DPP.
He had not used telephone numbers in his letter of request and, indeed, shied away from reciting numbers in any correspondence because he had a personal problem with dyslexia and frequently transposed numbers.
He was conscious that the telephone belonged to his client and hence had used the expression “held by” to make that clear.
When the matter was listed for trial on 2 July 2002, he was again told, this time by the DPP solicitor, that it might not proceed and that the complainant was to be proofed again. He was further told that the telephone records he had requested would be provided to him and that was confirmed in correspondence he received from the DPP on 5 August (Ex. “PAL2”).
The matter was to be tried on 30 September and, on 19 September, he wrote again to the DPP requesting, inter alia, a response to his letter of 7 May.
On 26 September, he spoke to an officer of the DPP, again stressing his client’s need for the telephone records requested. He was informed that there had been delay and that the records would be provided urgently.
The matter then came on for a directions hearing, before me, on 26 September, when the accused’s solicitor complained of the failure of the prosecution to provide the telephone records sought and foreshadowed a potential adjournment application. The DPP’s representative then said the position was unsatisfactory, that they had pressed for the information and had been told that it would be provided within four to five days. They accepted they had undertaken the responsibility for obtaining it. In the course of that hearing, the potential for an adjournment was raised and I observed that, prima facie, the circumstances did not justify that.
By the time of the trial date, the materials had still not been provided and it was stood over for eight days.
It was then listed at 2.15 p.m. on 8 October and Longson received some mobile telephone records (but not in declaration form) at about 2 p.m. that afternoon. They indicated that, between 1 and 20 January 2002, M had made 338 calls to a particular mobile number, but it then emerged that number was a distribution centre for text transmissions. The records did not otherwise disclose the recipient number of the text. Longson was told that to obtain archived information about recipient numbers would take another three months.
On his evidence, which I accept, Longson found himself in a position of embarrassment and stress. He had been provided with some of the requested information, but it was incomplete as it did not identify recipients. He did not then believe he was in a strong position to obtain a further adjournment of the trial. Further, he was conscious that his client had been refused bail and had remained in custody for nine months (the accused was then facing other charges which might have merited imprisonment, but Longson had some confidence that a suspended sentence might be obtained in respect of them).

He had not, in his experience, encountered a situation like it. He was without the benefit of access to any other advice and he had to make a decision within minutes. Having spoken quickly to the accused, he tendered certain advice, which resulted in the accused instructing him not to apply for an adjournment, but to proceed.
Longson was challenged in his evidence over that decision. He acknowledged that the identity of the recipients of the text messages had been perceived as of fundamental importance to the defence from the beginning and he was pressed as to why he had not therefore sought a short or, indeed, a lengthy adjournment. He repeated his above reasons, saying he had thought he might make some headway on the basis of the materials actually provided. In hindsight, he said, his decision was not the correct one. He would never have considered such a course had his client been on bail at that time. He said that he felt pressured by the decision and insufficiently experienced to properly advise about it.
At all events, as matters transpired, the trial was aborted, for unconnected reasons, and he was afterwards told by an officer of the DPP that he need not worry, as the matter would not be proceeding again.
My attention was, however, drawn to one passage in the evidence of M which came before the court as an exhibit (VDP3). It was put to M that in the period 3 to 15 January 2002 she had sent out 338 text messages from the mobile phone she was using. She thought that was too many, but reference to the Exhibit VDP2 appears to establish that number, a thing remarkable in itself.
There then followed this passage, at page 95:
“Q.I am asking you what you think - what percentage of the 338 text messages between the 3^rd and the 15^th would have been sent to Mr Seminara.
A.I wouldn’t have a clue.
Q.50 per cent.   (NOT ANSWERED)
Q.75 per cent. (NOT ANSWERED)
Q.90 per cent.
A.Probably 90 per cent.
Q.So your evidence to the jury is that, between 3 January and 15 January, approximately 90 per cent of your text messages would have been sent to Mr Seminara.
A.No, I’ve said that wrong.
HIS HONOUR
Q.How many messages do you think you sent him between 3 and 15 January.
A.Very little.
Q.How many do you think.
A.10, 20.
XXN
Q.So your evidence is you have sent possibly 20 messages to Mr Seminara between the 3^rd and the 15^th.
A.Yes.
Q.In breach of your bail.
A.To leave me alone.”
M then repeated that answer twice when challenged again.
Subsequently, she agreed that she had initiated a number of telephone calls to the accused’s phone between 3 and 15 January, but she said there were “not very many” of them.
In the event and despite the earlier intimation, the prosecution did proceed and when Longson learned that, he wrote again to the DPP, on 24 October, in terms of the Ex. “PAL5”. That letter specifically raised the matter of details of text messages. At that time, the trial had been listed for three months hence, to enable the DPP to obtain the archived materials.
On 28 November 2002, the DPP wrote to him, saying that the investigating officer had been tasked to obtain the text message information and it would be provided (Ex. “PAL6”). In order to protect his client’s position, and understandably so in view of what had gone before, Longson sought a stay of proceedings pending the supply of that information and, indeed, was successful in obtaining one on 28 January 2003.
In the meantime, Longson had again requested the information, on 21 January 2003 (Ex. “PAL8”), and on 23 January had been provided with declarations of the witnesses Wicks and Foster. Those declarations dealt with the availability of text message content, but not the availability of recipient details.
In the light of the stay order, a trial was listed for 31 March 2003 on the footing that telephone materials would be provided by the prosecution. Longson again wrote to the DPP on 11 February seeking the information required and was told on 13 February by an officer of the DPP that the requested material might not be available.
He then gave an account of the receipt of the further statements from Telstra and Optus dealing with mobile calls and which were contained in Exhibit VDP1.
He was asked whether he accepted the claim in the statement of Bannister that details of recipients could not be procured. He said all he was able to conclude was that was what Bannister was saying. Otherwise, he did not know of Bannister’s authority or expertise in saying that. He had assumed, on the basis of what the statements said, that the information was not available, Bannister and Foster were, after all, purporting to represent Telstra. He had seen no purpose in issuing a subpoena himself because he considered that if the information had been available, Telstra would have provided it to the DPP, which was always aware of what he sought.
In re‑examination, he commented that because of funding issues, defence solicitors had to rely to a substantial extent on enquiries made through the prosecuting authority and, in this instance, he had been given every indication that the DPP was cooperating with his enquiry.
I turn then to the evidence relating to communications. There were tendered a bundle of statements of the relevant witnesses (VDP1) and some telephone records (VDP2), in particular, those relating to the mobile phone used by the complainant.
The following matters emerged from those documents or were otherwise common ground:
(1)between 1 and 17 January 2002, the mobile phone held by M initiated contact with the accused’s mobile telephone, for conversational purposes, on 21 occasions, albeit that in her evidence in the previous trial (VDP3 at pages 76 and 87), the complainant said that on two occasions over that period, the accused “stole my phone”. She also said that various of the alleged phone calls were not made by her;
(2)in the same period, the mobile phone held by her initiated 338 text messages. As I have noted, in her evidence the complainant first said that 90 per cent of those were sent to the accused, but then amended that and said that between 10 and 20 of them were and that they were for the purposes of telling him to leave her alone.
I have already described the manner in which the information as to the use of M’s mobile phone emanated and it is not necessary to deal in detail with the contents of VDP1, other than to say that, on the evidence of Kingsley Bannister, during the relevant period “billing records captured the date and time of SMS messages but not the mobile service number receiving the message. A system known as SMTrack was able to capture the number of the mobile service receiving the message but these records were kept for only ninety days”.
Megan Foster
Otherwise, the Telstra witness Megan Foster was called. She said how she was attached to the Law Enforcement Liaison Section of Telstra and how that section deals with such requests for Telstra records as may be dealt with under the Telecommunications Act. Broadly, those requests came in two forms, direct requests from police agencies or requests pursuant to a subpoena.
She spoke of the nature of information stored by Telstra and how there were different databases and programs containing that information.
Since mobile telephones have been in use, Telstra records the date and time of each call made, the duration of the call and the number dialled.
The situation with SMS text message is somewhat different. There are two sets of records kept: the network one and the billing one. The network one records all calls and the billing one records all calls that have actually been charged.
Billing records as of January 2002 did not display the receiving number of a charged text message and the network record only showed the SMS Centre number to which the text message was first directed, not the ultimate recipient number. There was, however, in January 2002, a system in place whereby you could search the SMTrack database to discover that recipient number. It was, said Foster, accessible for a period of 90 days after the call and then it aged off the system automatically.
That system changed, however, in September 2002 so that the billing database began to record and store indefinitely the receiving numbers of SMS messages. She was not aware of any way in which the receiving number of a text message sent in January 2002 could now be retrieved. It could only ever have been done within 90 days of the message.
Likewise, she said, the text of actual messages could have been read within 90 days after the message was sent, but not after that time.
She said that she had not previously mentioned this distinction between information availability in January as opposed to September of 2002 because she had not been asked about it.
She was then tested on her discussions with the DPP and with police officers about this matter, but she was vague and uncertain about that because she did not keep notes of such calls, she received too many of them.
She was tested at length on the conflict between the above description and what had been relayed to this court on prior occasions by the DPP concerning the availability of records.
She was not able to give direct evidence about matters of computer or engineering expertise and, because of the absence of any telephone notes relating to the matter, could not deal with those challenges.
Plainly, it is now difficult to reconcile that conflict, but for reasons which I will come to, there is no need to do that.
Later, in his address, the prosecutor sought to contend that I might take the evidence of his own witness, Ms Foster, “with a grain of salt”, in so far as it related to the storage of text messages for 90 days. That was a somewhat unusual comment and I disregard it. She was the only person purporting to give evidence on the matter.
The Law
Both parties addressed on the legal principles relating to abuse of process. There was no dispute as to those principles, but it is helpful to restate them.
This court undoubtedly has the jurisdiction to grant a stay of a criminal prosecution and that power has a dual purpose: to prevent the prosecution of proceedings brought for an improper or oppressive purpose and to prevent a prosecution which will result in a trial which is unfair (Jago v The District Court of NSW & Ors (1989-90) 168 CLR 23 and Williams v Spautz (1991-2) 174 CLR 509). Here, the accused relies on the latter form of abuse.
In Williams v Spautz the court observed (at 519):
“... the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial.”
and further:
“It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process ... unless ... the interests of justice demand it.”
The court observed (at 529):
“It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is ‘a heavy one’ ... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.”
Having concluded that, I remind myself of the remarks of Debelle J in Martin (No 4) (1999) 105 A Crim R 390 at 393(9):
“It is undesirable to fetter the discretion to order a stay with such epithets but they are useful reminders of the proper restraint which must be exercised ... The ultimate touchstone must, of course, be fairness to the accused ...”
Those authorities and others deal, as well, with the relevance of delay or dilatoriness in abuse of process applications. In this matter there was, indeed, strong and justified criticism of the manner in which the evidence as to telephone communications had emerged and over the delays and adjournments which had ensued, but, in the end, those delays post‑dating 15 April 2002 became of marginal importance, only, in so far as they reinforced the importance attached by both prosecution and defence to the missing material. The accused relied not on delay per se, but on the loss of exculpatory or highly relevant evidence.
There can be no question that the destruction or loss of evidence, however brought about, can give rise to a measure of unfairness which will merit a permanent stay of proceedings. The cases of Holmden v Bitar (1987) 47 SASR 509, CSDA v Bourke (1999) 202 LSJS 178, Duncombe-Wall v Police (1998) 197 LSJS 398 and Davis (1995) 81 A Crim R 156 are examples of this.
In Holmden, Cox J emphasised the exceptional nature of any abuse of process finding, but determined that the destruction of evidence of an alleged illegal import by Customs officers had the effect of preventing the accused from discharging an onus of proof she faced with respect to the identity of the imported object. He commented (at 517):
“For the reasons that I have given I reject the Commonwealth’s submission that says, in effect, that the magistrate exaggerated the significance of the averments. Short of calling evidence from the European manufacturer, it is not easy to see how the respondent could have made any effective answer to the averments in this case. Of course, there may not have been an exculpatory answer available, even from the manufacturer. I suspect that there was not. However, it would be wrong to take that for granted. It would also be wrong to treat the appellant’s objection as a mere piece of forensic opportunism, an unmeritorious attempt by a guilty defendant to avoid the consequences of her breach of the law. It may, indeed, have been both of those things, but that makes it all the more necessary not to lose sight of the important underlying principle.”
In CSDA v Bourke, Wicks J observed that the factual circumstances there were similar to Holmden’s case, albeit that they concerned the destruction by the Commonwealth of various declaration forms prepared by the accused. His Honour observed that those forms were the only evidence which had the potential to support the accused’s defence and he had been “denied the opportunity to cast doubt upon” various inferences relied upon by the prosecution (182). He went on:
“... the only evidence which was capable of corroborating the story of the respondent had been destroyed the result of which being that to continue with the proceedings would result in an unfair trial.” (183)
In Duncombe-Wall v Police, a central issue at the trial was who had initiated a call to the police. A subpoena had been issued for the production of the police recording of that call, but it had been destroyed in the meantime. It was the only evidence able to corroborate the accused’s version of events and Lander J there held that it was essential to a fair trial that the accused be given the opportunity to support his version of events. He thus determined to permanently stay the proceedings. His Honour commented, at 408:
“I think the appellant lost a real opportunity to put the whole of his case to the learned Magistrate.
That opportunity could not have been ameliorated by any action on the part of the prosecution. There was no other evidence directly on point. This was the only independent objective evidence available to the prosecution in the presentation of its case which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence.
It is no answer to the appellant’s argument that this evidence was destroyed simply because of a failure of communication within the Police Department rather than for the purpose interfering (sic) with the appellant’s fair trial. The purpose is not important. The end result is. Of course, if the evidence had been destroyed to deny the appellant a fair trial then an order would have gone immediately.”
In Davis, a general practitioner was charged with a number of sexual offences, some of them occurring many years before. He had, by the time of the charges, retired from practice and his practice records had been routinely destroyed. It was considered that without access to them, it would be impossible for him to properly conduct his defence. Disciplinary proceedings were thus stayed because it was considered they would result in irreparable unfairness.
I cite the above cases, not because they have direct applications to the facts of this case, but because they demonstrate that in exceptional circumstances, the loss or destruction of evidence can result in irreparable or irremediable damage to the accused’s prospects of obtaining a fair trial and can lead to a stay order.
The accused’s case here rests on the same proposition.
In making the findings which follow, I keep in mind that the accused bears the onus of establishing the facts upon which he relies.
I am satisfied as to the following matters:
(1)Between 1 and 17 January 2002, there were 21 telephone calls made from the mobile phone habitually held by M to the mobile phone habitually held by the accused. In her evidence (VDP3), M said that within that period, the mobile held by her was twice “stolen” by the accused and she denied making a number of those calls herself. The evidence as to this form of communication between them was thus of limited value.
(2)In the same period, there were 338 text messages emanating from the mobile phone held by M and which were received by Telstra’s SMS distributing system.
I am unable to make a finding as to the destination of all of those calls. In her evidence in the previous trial, M first said that 90 per cent of them had gone to the accused, but she then corrected herself and identified only 10 or 20 as within that category, saying they were to tell him to leave her alone.
I have considerable reservation about that passage in her evidence, particularly as she does not seek to relate any of the unattributed calls to the periods when the accused had allegedly stolen her phone. At all events, she admits sending 10 or 20 messages and that number is, of itself, a significant one in the context of the accused’s complaint.
(3)In the course of his record of interview, the accused denied that he had raped M, contending that they had had consensual sexual intercourse, and he described having messages on his telephone to prove that she had been contacting him on the day of, but prior to, that act (Q33). At Q55, he invited the investigating officer to check his telephones.
At Q66, he invited the investigating officer to see the messages M had sent him and asked him to leave on his phone. He said some of them remained, although some had been deleted. As I have previously observed, he then appeared to show the investigating officer a number of messages on his telephone and some of the contents were read into the transcript of the interview, but I am not satisfied, on all the evidence, either:
(a) that the messages recorded were read out in full; or
(b) that all the messages were read out or referred to.
Nothing in the record of interview or the evidence of Detective Pettinau suggests that. Indeed, the text of some of them suggests otherwise.
At Q70, the accused is asked whether he was responding to things she sent him and he said “She is sending things to me first and yeah and then ‘I’ll be there soon’ okay now this ...”.
He said he was asleep during the time that many of these messages were sent to him because he had had a late night.
I am thus satisfied and find that a consequence of that record of interview, the investigating officer was fairly and squarely put on notice of the accused’s denial of the charge and of his claim that there had been numerous text messages sent to him by M, in the period shortly preceding her visit to the house, which were relevant to the nature of their relationship and to his claim that she had chosen to visit him on that day because it was his birthday and she wanted to see him.
(4)I am satisfied and find that, for reasons which are unexceptional, the accused’s solicitor was not put on proper notice of the accused’s concern as to his mobile telephone information until after he had seen the declarations and taken instructions from the accused in late March 2002. He said, and I accept his evidence, that even then, he did not appreciate the need immediately to seek to obtain that because it was not likely to affect the outcome of the forthcoming committal and because it had been intimated to him that the charge might not, in any event, be proceeding.
(5)The committal occurred on 4 April 2002 and, on 7 May, the accused’s solicitor sought access to “records for all mobile phones held by [M]”.
For reasons which were not satisfactorily explained, the investigating officer, despite being on notice of the accused’s concerns about the mobile telephone records, including the text messages, took no steps whatsoever to procure their recovery until August 2002. On all the evidence, it is plain that records of recipient numbers of text messages, and indeed the contents of those messages, emanating from M’s mobile phone, had long since been destroyed, the last of them apparently on about 15 April 2002.
(6)What followed after that time, in terms of misleading and incomplete information supplied by Telstra and its consequences for the course of the trial, is not of particular relevance, albeit that it is a matter of general concern. In this respect, I should say that I lay little blame at the feet of the DPP, which appeared to fully understand the significance of Longson’s request for information, to assume responsibility for obtaining it and to do its best to obtain it.

The accused now complains that his lost opportunity to access at least 10 to 20 texts as to content and up to a maximum of 338 as to recipient and content information, has gravely prejudiced the proper conduct of his defence and has denied him the opportunity to exculpate himself.
In reply, the prosecution contends that he has lost no more than the opportunity to discredit the evidence of M as to the extent and the nature of the contact between them in the period between the beginning and 15 January 2002. It is a matter, says the prosecution, which can be the subject of comment at trial and upon which the trial judge might adequately direct a jury.
That response is strongly challenged by defence counsel, who says that the nature of the accused’s responses in the record of interview, disclose contentions that access to the telephone text information would reveal not only the reliability of their competing accounts, but the measure of contact between them, the nature of their relationship and, indeed, perhaps most pertinently, the precise circumstances and reasons for M’s visit to the accused on 15 January.
I have considered those competing arguments against the materials and I am persuaded that the accused’s contention is a valid one. This is not a case of an accused seeking to obtain the benefit of a lately discovered loophole in the framework of facts supporting the prosecution. It is not “mere opportunism” on his part. From the very outset of the investigation, he was anxious that the police check the text traffic, not merely because it supported his credibility, but because it served to explain his relationship with M and, in particular, her reason for visiting him that afternoon. He persisted with that request afterwards through his solicitor, albeit that it was destined to be a fruitless search, due to the failure of the investigating officer to promptly seek the information.
I am satisfied that from the beginning, the police cannot but have been aware of the significance to the accused of the material he was inviting them to check, and yet nothing was done for nearly seven months after his interview.
The DPP has sought to deflect the responsibility for this enquiry onto the accused himself, saying it was within his power to subpoena the information, but there are a number of answers to that:
(1)A primary duty fell upon the investigating officer to examine all matters relevant to the complaint, whether of an inculpatory or exculpatory kind, of which she knew. This was one such matter and whether or not she knew of the 90‑day limitation period, she plainly ought to have followed up the enquiry with reasonable promptness and well within that time. The fact that the committal was able to take place within that time‑frame is, itself, instructive.
(2)The Police Department had simple access to the information through its proper authority and should be presumed to know of the limits on access to it, anyway. In contrast, the only remedy available to the accused was by way of subpoena and I consider his solicitor acted reasonably and saw little purpose in pursuing the information, given the cooperation he was receiving from the DPP.
(3)Tellingly, the DPP, itself, plainly recognised the significance to the defence of the information sought and its cooperation with the defence in seeking access to it, coupled with the misleading (albeit innocently so) explanations it gave to the defence, in my view absolved the accused’s solicitor of any obligation to press the latter himself. By then, it was too late, anyway.
The prosecution has sought to characterise the material as going only to the question of credit, but I am satisfied, from the content of the record of interview, that it had the potential to go considerably further than that and become relevant to the nature of the relationship between the parties as of 15 January and, indeed, the circumstances which led to their meeting on that day. I would be surprised, indeed, given its expressed concern about the matter on various occasions in this court, if the DPP had always considered it went only to the question of credit.
Plainly, I am not in a position to fully evaluate the extent of the disadvantage potentially falling upon the accused by virtue of the loss of access to that information, but having regard to his statements as to its content, made from the outset, I am persuaded he has been deprived of the opportunity to adduce evidence which had the potential to be of major significance in his defence. I cannot see that the prejudice caused to him by its absence can, in any measure, be cured by direction to a jury.
I remind myself, once again, that the form of relief sought should only be granted in exceptional circumstances, but I regard this matter as one such case. The accused’s application is upheld and I dismiss the countering application of the DPP.

[2003] SADC 56

11 April 2003