Regina v Hatfield [1999] NSWSC 998

New South Wales Supreme Court CITATION : Regina v Hatfield [1999] NSWSC 998 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70076/98 HEARING DATE(S) : Wednesday 22 September 1999 JUDGMENT DATE : 30 September 1999

PARTIES : Regina v Irena Hatfield JUDGMENT OF : Michael Grove J at 1

COUNSEL : R. Ellis (Crown) I. Barker QC with S.J. Stanton (Applicant) SOLICITORS : S.E. O'Connor (Crown) S.A. Teen (Applicant) CATCHWORDS : Criminal Law & Procedure - Lost Physical Exhibits - Lost Records Concerning Prosecution Witness - Whether Trial Inevitably Unfair ACTS CITED : Evidence Act 1995 Charter of Rights and Freedoms (Canada) Barton v The Queen 1980 147 CLR 75 Jago v District Court of New South Wales 1989 168 CLR 23 R. v Glennon 1992 173 CLR 592 R v Tolmie CCA Unreported 7 December 1994 CASES CITED : R v La 1997 2 SCR (Canada) 680 R v Carosella 1997 1 SCR (Canada) 80 R v McCarthy CCA Unreported 12 August 1994 Crawford v Bitar Supreme Court (SA) 7 August 1987 Duncombe-Wall v Police Supreme Court (SA) 2 July 1998 Commonwealth Service Delivery Agency v Bourke Supreme Court (SA) 16 April 1999 DECISION : Application for permanent stay of proceedings refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 30 September 1999

70076/98 - REGINA v IRENA HATFIELD

JUDGMENT - On application for a permanent stay of proceedings

1 HIS HONOUR : Irena Hatfield (the accused) has been committed for trial on a charge of murder. The victim was her husband Christopher who died of gunshot wounds received on the night of 19-20 April 1985. An inquest into his death was held at Glebe Coroner's Court on 17 June 1986. The charge against the accused was preferred on 13 June 1997. 2 The accused seeks an order for permanent stay of proceedings. In March 1999, 8th November next was scheduled as the commencing date of the trial and I was allocated as trial judge. Mr Barker QC who appeared with Mr Stanton for the accused and Mr Ellis for the Crown indicated at the beginning of this application that they were agreed that that hearing date should be vacated. I declined to make any order to that effect and indicated that the question of it should await the outcome of the present matter. I record that I deal exclusively with the application and I am not as trial judge, making pre trial rulings. 3 To give context to the application, some circumstances and anticipated ingredients of the Crown case need to be sketched. 4 Shortly after midnight on 19-20 April the accused telephoned police and reported that she had just tried to awaken her husband whom she then observed had been shot. She thought he was dead. Police and ambulance were despatched to the matrimonial home at 47 Chester Avenue, Maroubra. Inspection revealed the body lying on a lounge covered by a blanket to the chest. A small hole was visible in the blanket surrounded by apparent bloodstains. Three wounds were visible on the head of the deceased. 5 Investigation demonstrated that the deceased had been shot with .22 calibre ammunition. One projectile had entered the chest area. Wounds had been sustained to the head. Later weighing of fragments led to an estimate that four projectiles had entered the head even though observations had noted three wounds. Four cartridge cases were located in the lounge room. No weapon was found in the vicinity. In due course police took possession of the clothing of the deceased and also that worn by the accused at the time of their arrival. 6 On the morning of 20 April 1985 a recreational diver entered the water near a boat ramp at Long Bay. He noticed a rifle floating stock upwards and a metal object later found to be a silencer lying on the seabed nearby. He attended to his own business of collecting fish for a couple of hours and then retrieved the rifle and silencer which he delivered to Maroubra Police. Later police divers searched the area and a magazine was recovered. The rifle was a .22 calibre Brno brand weapon. It required a bolt for operation but none was located. At the hearing of this application the Crown accepted that it cannot prove that the Brno rifle was the weapon used to kill Christoper Hatfield. At the highest, it can adduce evidence that examination of material recovered at the scene and at post mortem had been subjected to comparison and nothing was found which was inconsistent with the Brno rifle having being the murder weapon. 7 Items submitted by police for examination included a glass found in the lounge room and the accused's dressing gown. A forensic biologist (Ms Clancy) certified that human blood was detected on the glass and that presumptive tests for blood on undefined areas of the dressing gown had given a positive result. 8 In a statement dated 19 December 1997 Det Senior Constable Allison asserted: "3. A number of inquiries have been made in an effort to locate the following exhibits: (a) Brno brand .22 calibre firearm, silencer and magazine. (c) Clothing worn by the accused. (d) Clothing worn by the deceased.