R v Thornton
[2001] QDC 116
•21 June 2001
DISTRICT COURT OF QUEENSLAND
CITATION: R v. Thornton [2001] QDC 116 PARTIES: THE QUEEN Applicant
and
ROBERT ALAN THORNTON RespondentFILE NO/S: Ind 1030 of 2001 DIVISION: Criminal Jurisdiction PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 21 June 2001 DELIVERED AT: Brisbane HEARING DATE: 18, 21 June 2001 JUDGE: Judge Forde ORDER: Order that indictment 1030/01 be permanently stayed. CATCHWORDS: Criminal Code s.592A;
Evidence Act s.93;
Police Powers & Responsibilities Act s.273;
R v. Wrigley C.A. 330/98;
Jago v. The District Court (NSW) & Ors (1989) 168 CLR23;
R v. Johannsen & Chambers (1996) 87 A.Crim.R 126 at 142;
R v. Barbera Court of Appeal of New South Wales, dated 22 May 1959 and referred to in 1972 1 NSWLR 612;
R v. Court (1960) C.A. Rep 242;
Ross v. Tran & Anor (1996) 87 A.Crim.R. 144.COUNSEL: Mr. P. E. Smith for the accused
Mr. M. Nicholson for the CrownSOLICITORS: Aboriginal and Torres Strait Islander Corporation (QEA) for Legal Services for the accused
Director of Public Prosecutions
The applicant in this matter is Robert Alan Thornton. The applicant brings this application pursuant to section 592A of the Criminal Code for determination prior to trial. The relief sought is for a stay of proceedings in the matter or alternatively that there is no case to answer.
The applicant is charged with the offences of entering the dwelling in the nighttime with intent to commit an indictable offence and unlawfully assaulting the complainant, thereby doing her bodily harm.
The alleged events occurred on 27 March 1978. The application for a stay is based upon not only the delay in bringing the trial on for hearing, but also the loss of evidence and the death of the complainant.
Factual background
The Crown allege that fingerprints were found on 27 March 1978, that is the same day of the alleged offence at the subject premises. The fingerprints were found that same day on the upright of a door patio and the window frame which is alleged to be the point of entry. The investigating officer used a ladder to properly examine the prints. One can safely infer that a casual passer-by would not have left fingerprints on the window frame in that position.
Identification of the fingerprints is not disputed for the purpose of this application, namely that they are the fingerprints of the applicant. “Operation Javelin” was an attempt by police to identify fingerprints taken from scenes of crime. Fingerprints were taken from the applicant on 20 September 2000. Sergeant Martin Wise a police fingerprint expert, using the Automated Fingerprint Identification System Computer, made the match. There were other fingerprints found at the scene which could not be compared with the applicant’s as the applicant did not provide similar types of prints when he gave same.
Apart from the fact that the complainant has passed away, medical evidence of her injuries are not available as they have been destroyed. The accused did not make any admissions in relation to the subject matter. The date when the prints were taken can be gleaned from a criminal offence report dated 4 April 1978. That report is said to be admissible pursuant to s.93 of the Evidence Act. For the purpose of this application, I accept that date as evidence of the date that the fingerprints were taken. They were taken on the day of the attack
The defence submit that the applicant will be prejudiced because the complainant has passed away. It is submitted that she may have been cross-examined about the identity of the offender. It is not known what she would have said as no description is available by way of a statement, nor in statements made to medical officers. In fact the hospital notes are also missing. There is no evidence in admissible form as to exactly what occurred, but the complainant had knife marks on her neck and arm. Given the nature of the offences, nothing particularly turns on that latter point.
The defence submit that the medical reports are not available which might disclose that forensic testing was done on the complainant. In other words, whether there was any hair or other material available to be tested. In an offence such as rape that particular submission may have more force. By itself, that submission carries little weight.
The knife which was used was found outside the home after the event. It was a knife which was owned by the complainant but no fingerprints were taken as it was raining on the evening. A scotch bottle which was taken from the caravan in the backyard and found inside the house in a washing basket. It was not tested and cannot now be tested. These are matters which the defence say may have assisted the accused. The ownership of the scotch bottle was not established. It is difficult to find that whoever broke in may have touched the scotch bottle. Another aspect of the case is that further fingerprints were found a week after the alleged attack. Mr Wise was unable to match those fingerprints with those of the accused. The nature of the fingerprints obtained from the accused as contained on the official fingerprint form do not have the relevant friction ridge skin. It may be that further fingerprints from the accused may be relevant. At this point in time, the fingerprints in Exhibit C being frames 6 & 7 cannot be related to the accused.
The Crown have submitted that an order be made under s.273 of the Police Powers & Responsibilities Act 2000. That section provides:
“273 (1) This section applies if, in a proceeding for a charge of an identifying particulars offence against a person other than a child, a court is satisfied it is necessary to take or photograph the person’s identifying particulars to help –
(a)identify the person in relation to the offence or another offence the person is suspected to have committed; or
(b) confirm the person’s identity; or
(c) find out the person’s criminal history; or
(d) keep criminal records.
(2) The court may order –
(a)that the person charged be held in custody for up to 1 hour to enable a police officer to take or photograph all or any of the person’s identifying particulars; or
(b)that the person report to a police officer at a stated police station between stated hours within 7 days to enable a police officer to take or photograph all or any of the person’s identifying particulars.”
If one assumes the definition of “court” includes the trial court, it is not necessary to make the order. Even if the prints were found to be those of the applicant, it does not detract from the defence evidence that the applicant may have attempted to break in on some other occasion.
Louise Dawson, the daughter of the deceased complainant, provided a statement dated 15 November 1999. At the time of the alleged offence she was 18 years of age and lived with the complainant at the subject premises at 48 Abelia Street Inala. She stated that the date of the alleged offence was a hot evening and that her mother left the window open. She said there was a bread knife left at the washing-up area in the kitchen. During the night she heard her mother screaming and jumped out of bed to see what was wrong. The door was left open when she went to bed but it was closed when she got up and she ran into the closed door. She heard her mother scream to phone the police. Her mother was standing in the hallway outside her bedroom with blood coming from her arm and she observed a person running towards the front door. He was taller than her and may have been over five-foot tall and was wearing dark clothes and had something over his head and hair. This may have made it difficult to identify the attacker. He appeared to be off balance as he ran. The knife was subsequently found in the yard. She also confirmed that there was an empty scotch bottle which was located in the washing basket behind the laundry.
Relevant Principles
In Jago v. The District Court (NSW) & Ors (1989) 168 CLR 23 at 33-34, the following passage appears:-
“The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of delay, the reasons for the delay, the accused’s responsibility for asserting his rights, and of course, the prejudice suffered by the accused.”
The Queensland Court of Appeal applied that principle in R v. Johannsen & Chambers (1996) 87 A.Crim.R 126 at 142 (Thomas J.):-
“The question whether criminal proceedings should be permanently stayed on the ground of abuse of process is answered by a balancing of a variety of factors which include the requirement of fairness to an accused, the legitimate interest of the public in the disposition of charges for serious offences and in a conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”
In that case the court held that various factors relevant to that case made it “impossible to ensure that a fair trial could now take place”. That was a clearer case than the present case as it involved the unavailability of various witnesses and the loss of a range of documents including statements and records of accommodation and the notebook of the investigating police officer.
The defence referred to two other cases which are relevant in the present instance which relate to fingerprint evidence. In R v. Barbera a decision of the Court of Appeal of New South Wales, dated 22 May 1959 and referred to in 1972 1 NSWLR 612, there was fingerprint evidence that established that the applicant was at some time or other in contact with the car. The court was not satisfied that it could be said in that case that there was not a possible and reasonable explanation of the presence of the applicant’s fingerprints on the car explicable on the hypothesis of innocence (613). In the present case, Mr Smith, for the applicant, argues that the applicant may well have attempted to break into the subject premises, but it cannot be said that it was at the relevant time and moreover that he was responsible for what occurred thereafter, namely the attack on the complainant. In other words, there is a possible and reasonable explanation consistent with innocence. The other case of R v. Court (1960) C.A. Rep 242, fingerprints were found on the back of the driving mirror. It was established that it was the accused’s left fore-finger. The Court of Appeal held that the position of the fingerprint was not consistent, only with it having been made by someone driving the car at the time, but also from someone leaning over from behind to adjust the mirror although it may be less of a probability. The Court found that although the facts were suspicious in that case, the accused having admitted that he was a passenger of the vehicle at the time. He was charged with being in possession of the vehicle and the Court allowed the appeal in that regard and quashed the conviction.
The present applicant had been previously charged for break and enter offences. The defence say he may have attempted to break and enter the subject offences but not at the relevant time. Johannsen op.cit. 132.
The applicant lived some streets away from the subject offence. In my view there is an explanation consistent with innocence which cannot be excluded. This is another factor which ought to be taken into account in determining whether a stay should be granted. Although the knife was never tested, one cannot be too harsh in assessing the Crown case in that regard as it was raining on the night in question. There is no evidence that the offender had touched the scotch bottle. However, it is an item which the defence has been deprived of testing.
I do not place much importance on the fact that medical reports which might possibly disclose that forensic testing was done on the complainant, had been destroyed. This in my view would not have prevented the accused from having a fair trial. One could contrast the situation where the clothing of the alleged offender had been lost.
In dealing with the question of delay, advances in science has allowed computerised checking of fingerprints to allow crimes to be solved. The same comment can be made in relation to DNA testing. Such delay by itself should not be grounds upon which to stay a proceeding. The defence submit that the passage of time makes it difficult to get instructions on alibi or whether the applicant was working at the time. Leave was given on 21st June, 2001 to read and file an affidavit by Ms Roggencamp , the applicant’s solicitor. She was deposed to the fact that there were no possible witnesses or alibi. Three family members were deceased. In some cases this may be of some significance. There is no sworn testimony that the applicant was not present on the date in question: R v. Wrigley C.A. 330/98 at page 6. One must look to see whether delay or other fault on the part of the prosecution may result in a mis-carriage of justice because of the significant possibility that the applicant is innocent. Apart from delay in matching the fingerprints, the failure to test the knife or bottle is relevant.
The Crown relied on a decision of Ross v. Tran & Anor (1996) 87 A.Crim.R. 144. In that case the accused had suffered brain damage which prevented him from recalling the alleged events and so was significantly prejudiced. It was held in that case that the failure of the police to match the prints earlier, the time delay factor, would not have itself justified the granting of a stay. However, Nathan J. on appeal held that the person whose capacity to mount and provide instructions for a defence is disabled from properly presenting a defence, then justice would be distorted if the matter were to remain in such a state. He also referred to the fact that there may have been an innocent explanation for the existence of the fingerprints found at the scene. A similar comment can be made on the present facts.
The defence say it has lost its opportunity of cross-examining the complainant as to identity or the features of the person who attacked her. The fact that the fingerprints were around the window which seems to have provided the point of entry is not conclusive. This is not conceded by the defence as the offender left through the front door. I am satisfied that there are exceptional and unusual circumstances in the present case to justify the order for a stay of proceedings. Alternatively, there is no case to answer.
Order:
It is ordered that indictment 1030/01 be permanently stayed.
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