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. 4. None of these exhibits have been found and I am unaware of their present location. 5. I spoke to a number of Police Officers who were involved in the original investigation. They could not assist in anyway whatsoever regarding those exhibit's whereabouts. 6. The rifle, silencer, magazine and white T-shirt (worn by the deceased) were tendered at the Coronial Inquest into Christopher HATFIELD's death conducted at Glebe Coroners Court on 17 June, 1986. 7. I am aware that clothing worn by the accused was conveyed to the Division of Forensic Medicine Glebe by Constable L. BRIDGE on 24 May 1985." The statement contains no paragraph numbered 3(b). 9 I understand it to be common ground that the glass examined by Ms Clancy is also missing but that the magazine retrieved from the sea has been located. It has been kept with projectile fragments and cartridge cases which remain available. The holed woollen blanket which had partly covered the deceased should also be included in the schedule of missing items. 10 Some cards recording movements of police exhibits were produced at the committal hearing. They were retrieved from the Ballistics Unit. One of them (which is undated) appears to show relevant items of clothing and the rifle being received by a Detective Long from Detective Ransome. Detective Ransome is a ballistics officer and currently remains a member of the Police Service. Detective Long is no longer in that service. Detective Ransome testified at committal that the last record he believed he had would relate to producing the items to the Coroner. He acknowledged that the usual practice was for the Coroner's exhibits to be returned to the officer in charge of the investigation and that in this case it would be either Detective Long or Detective Ralston. He had not spoken to Detective Ralston about the matter. 11 The accused was interviewed by police in 1985 and (as she continued to do in later interviews) asserted her innocence. The arrest in 1997 followed renewed inquiries provoked by reports to police by one Atticus Busby that in conversation with her she had allegedly confessed her guilt. Certain material was gathered by the use of listening devices. At times there was a relationship between the accused and Mr Busby. Whilst they have since expressed different perceptions of the nature of that relationship it did involve sexual intimacy. At the committal hearing there was also called a witness named Lourdes Pereira. She and the accused had encountered each other in 1991 or 1992 at Elcho Island in the Northern Territory. Ms Pereira was secretary of the Galiwinku Aboriginal Council and the accused was engaged in setting up and running an art centre. Ms Pereira gave evidence of an alleged confession to her by the accused. 12 Mr Barker expressly acknowledged that it was not being asserted that there was no prima facie case. He submitted that the strength and weaknesses of the prosecution case were immaterial for the purposes of the application for a stay unless I took a view that there was so overwhelmingly strong a prosecution case that nothing the defence could do could possibly be effective. I do not take such a view. 13 The essence of Mr Barker's submission was that a fair trial cannot be had because the accused has been denied a real chance of establishing her innocence by reason of the loss of physical exhibits and some records of counselling sessions involving Mr Busby to which I will make later reference. 14 In support of the application the accused relied upon affidavits exhibiting reports from Mr Barber, a forensic ballistics examiner; Dr Ellis a pathologist; Mr Ross, a forensic scientist with special expertise in gunshot residue detection and an affidavit by her solicitor exhibiting the police brief served at the committal proceedings and certain transcript of those proceedings including transcript of evidence concerning the non production of the counselling records. 15 Substantial parts of the expert reports relate to theories pertinent to the discharge of a firearm. As I have said, the Crown is not in a position to allege that the Brno rifle was the murder weapon although I do not overlook Mr Barker's contention that its absence prevents it being proved that it was not. The prosecution case (so far as material presently before me shows) is centrally dependent upon the alleged confessions. The defence is not obliged to determine or disclose at this stage whether evidence about the finding of the Brno rifle is objected to or whether it is desired to have it admitted. It is conceivable that the defence may wish to demonstrate handicaps arising from its loss along the lines discussed by the experts in their respective reports. It lies within the power of a trial judge to maintain fairness at trial not only by directions to the jury but by exclusion of evidence sought to be tendered by the Crown. 16 It should be mentioned that there is inconsistency between witnesses concerning some observations at the scene. Dr Kariks who performed the post mortem noted that "the bullet wounds in the right fronto-temporal area were surrounded by gun powder spray measuring 5.5cm x 4 cm in area". Detective Ransome said he saw no such gun powder spray. That contradiction would not be removed by the presence of the missing exhibits. Detective Ransome did claim to see marks which could have been gun shot residue on the blanket. It is now missing but it was not, as I understand it, subjected to appropriate tests then nor, of course, can it now be so subjected. 17 It is also the case that the clothing of the accused was neither tested for gunshot residue at the time nor can it be now. 18 The absence of fairness in these regards is said to be perceived in the prevention of the accused from proving that the killer must have fired the weapon from close range (or contact) and that predictably gunshot residue and/or blood spray would have been deposited on the person of the killer and his or her clothes. Providing the clothing had been appropriately packaged and stored there should be, according to Mr Ross little disturbance of gunshot residue or blood. The accused is therefore prevented from positively proving that there was none on her clothing. 19 I comment in passing that, given the production at the inquest where the items were last reported it would seem unlikely that Mr Ross's pre-condition of appropriate packaging and storage would be met in any event. The complaint is that there is no positive proof of the absence of gunshot residue or blood spray. There is in fact no suggestion in the Crown case to the contrary. 20 The absence of ability to offer positive proof is said to work unfairness against the accused in a particular respect because she must face opinion evidence from Detective Ransome based upon proximity tests done with the Brno rifle and a "foreign" bolt that the muzzle must have been in excess of three, or two to three feet away from the point of contact of the projectile with the body. Again if it be demonstrated that the admission of such evidence from Detective Ransome was unfairly prejudicial there is jurisdiction to cure the matter. 21 Support for the proposition that the accused could positively prove her innocence was sought to be drawn from the opinion of Mr Barber but in my view the submission seeks to attribute to the potential scientific evidence a capacity which it does not possess. The presence of the physical exhibits may have enabled demonstration but only in the negative sense that the accused cannot be shown to have used the Brno rifle and that there was no evidence of a scientific nature that she discharged that or any other weapon at the relevant time. Mr Barber's own outline recognizes that this cannot be conclusive. 22 It suffices to observe the considerable qualifications which he stated: "It is acknowledged that blood groups and DNA in blood will deteriorate with time, however, visual detection of blood on cloth will still be possible. Gunshot Residues Gunshot residues, on the other hand do not have the adhesive properties of (wet) blood. Thus, gunshot residue particles which deposit on clothing as a result of the discharge of a firearm will move and/or be dislodged from their original location as a result of activity and time after shooting. Testing of garments to establish how long gunshot residues persist on clothing has indicated that, in general, it may be found on the clothing of someone who has fired a gun as much as eight hours after shooting. These findings are subject to many variables, in particular to the nature of the activity after shooting. · washing the clothing will probably remove all trace of gunshot residues; whilst · removing the clothing soon after shooting and leaving it on the floor is likely to preserve gunshot residues on the clothing. Occasionally, gunshot residues are preserved on a garment through adhesion to blood which has been deposited on the clothing. Although the detection of gunshot residues on a garment indicates that the wearer may have discharged a firearm (or had in some way come into contact with a firearm or other gunshot residue contaminated object) a nil finding does not exclude the wearer from having fired a gun. A nil finding will result where: · the person did not discharge the firearm or was not near a firearm when it was discharged; · gunshot residues were on the garment but have not been detected; · gunshot residues were on the garment immediately after the shooting but have been lost in the time between discharge and sampling; and · the firearm ejected the residues in such a way that none deposited on the clothing of the shooter." 23 I did not understand it to be alleged that the loss of a blood stained glass from the room where the shooting took place presented the accused with any particular obstacle but the circumstance was raised as part of the general complaint that the accused was unable to survey the prosecution case as a properly complete entity. 24 The statement by Ms Clancy that the garment tested presumptively for blood is not relied upon by the accused as potentially inhibitive of proof of her innocence. Insofar as evidence along the lines of her statement would be unfairly prejudicial I repeat that appropriate remedy lies within the jurisdiction of a trial judge. 25 The other category of missing evidence related to records of consultation by Atticus Busby with a counsellor at the Southern Cross University where Mr Busby was enrolled. He gave evidence that he first consulted this counsellor (Shumyam Peinecke) on the day after the accused allegedly told him about the murder. He was asked at the committal proceedings whether he commenced counselling at the suggestion of the accused and said "it was a mixture of things. I commenced counselling because of what Irena had told me. She had been suggesting counselling for some time." 26 There is detail of how the records of such counselling sessions were supposed to be kept in the copy affidavit of Annie Burrett (Exhibit A). What are missing are the notes relating to the first thirteen of a longer series of consultations with Mr Busby. Mr Peinecke has no explanation for the absence of these records other than suggesting that he might inadvertently have included them with other material which was destined for destruction. Mr Peinecke was called in relation to the non compliance with a subpoena to produce this material. He testified that he engaged in something in the order of one thousand consultations a year with students and that he had no independent recollection of the content of the discussions with Mr Busby pertaining to which the notes were missing. Mr Busby acknowledged that he had written a letter seeking that the subpoena to produce those records be challenged and he admitted that he opposed the production of them. This has apparently heightened the suspicions of the accused and her representatives concerning what the records might reveal. 27 It was submitted that it was obvious that what Mr Busby said (to Mr Peinecke) may bear directly upon his real view of conversations with the accused (assuming it is different from his testimony); whether he is confused as to occasion and whether he has now attributed significance to anything the accused has said which he did not previously. Of course it can be guessed that such matters may have been discussed but I do not agree that it is obvious that they were. 28 It was claimed that the defence cannot "test the issue". Even if the records were available the Crown would not be expected to seek to call Mr Peinecke in the trial to say what Mr Busby told him. Mr Busby is an essential Crown witness and what is desired in truth is the opportunity to inspect records (and provoke a revival of memory on the part of Mr Peinecke) for the purpose of cross examination (and, if necessary, contradiction) of Mr Busby directed to the credibility of his allegation that the accused had confessed to him or had seriously confessed to him. I am unpersuaded that the absence of these records which may or may not provide a resource for challenge to Mr Busby has the effect of making if unfair that the accused should stand trial at all. 29 There was no debate about the applicable law and Mr Barker accepted that it was necessary that it be demonstrated on the part of the accused that this was an exceptional case. There is ample authority: 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. 30 It has been said that the power to order a permanent stay should be exercised sparingly and that the circumstances will usually have to be extreme for relief to be given. In R v Tolmie unreported CCA 7 December 1994 Hunt CJ at CL said: "… to justify such a stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing which the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences." 31 "What a judge can do" is not limited to jury direction but includes the exercise of discretion to exclude evidence. See now s137 of the Evidence Act. 32 Counsel drew attention to cl 7 of the Canadian Charter of Rights and Freedoms namely: "7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." 33 I agree with the contention that the rights of a citizen protected by the common law are no less than those proclaimed in that clause, however this exotic reference was given to found an invitation to consider two decisions of the Canadian Supreme Court relating to the Charter right and missing prosecution evidence: one case where a tape was simply lost: R v La [1997] 2 SCR 680; the other, where material had been deliberately destroyed by a third party: R v Carosella [1997] 1 SCR 80. In La the majority held that what was expressed as a duty to disclose (which seems to comprehend production as well as revelation) was not breached if there was a reasonable explanation by the prosecution for the loss. By analogy Mr Barker has argued that there is no reasonable explanation in the present case, it being no more than mere assertion that the material last seen at the inquest cannot be located and that the counselling records must have been misfiled and/or possibly destroyed. In La the majority stated: "Here, the Crown's explanation was satisfactory. The tape recording was not made in the course of the criminal investigation and the police officer did not fail to take reasonable steps to preserve the tape. No abuse of process occurred. Conduct amounting to abuse of process includes the deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown's obligation to disclose and, even absent proof of improper motive, an unacceptable degree of negligent conduct." 34 In that case, so far as I can deduce from the published judgments, the explanation did not establish how the particular tape came to be missing although a system obviously failed and one could readily postulate that the officer who lost the tape was negligent. That would not seem to have elevated the negligence into the "unacceptable" category. In my view the same can be said here. In respect of both the physical evidence items and the counselling records, it could be readily postulated that the respective keepers did not meet the standards requisite for a person exercising due care in discharging a responsibility but there is no aspect that I would assess as elevating the circumstances into the range of unacceptable negligence. 35 The information concerning the missing physical items was for present purposes derived from the statements in the police brief. No objection was taken to this nor was there complaint that the prosecution was deliberately delaying cross examination of, for example, Detective Allison. Mr Barker did submit that, although he said in written submission that they were lost, it was "putting the case too favourably for the Crown. The police say they cannot produce them. How this has come about, we don't know because nobody has offered an explanation." He adverted to the signature receipt by former Detective Long and the absence of any statement from Detective Ralston. The concept of loss frequently inheres the absence of knowledge of precisely what has happened. If such knowledge were possessed materials could, unless destroyed , probably be retrieved. The statement of Detective Allison shows the negative result of his inquiries and I do not think that I should apply a presumption of mala fides in the circumstances. If it is being speculated that there may have been some sinister reason for the absence of the police exhibits then the matter can be tested at trial, if necessary on voir dire or Basha inquiry. The evidence does not persuade me that the loss of the physical exhibits was other than accidental and, although I infer that this was the result of neglect, I do not assess the occurrence as manifesting such a degree of negligence that trial should be prevented as inevitably unfair. 36 Carosella was a case where a sexual assault crisis centre followed a policy of deliberately shredding files with police involvement before being served (with order for production) in criminal proceedings. However the majority noted that: "There was abundant evidence before the trial judge to enable him to conclude that there was a reasonable possibility that the information contained in the notes that were destroyed was logically probative to an issue at the trial as to the credibility of the complainant." 37 I perceive no such abundant evidence of likely probative material in the present case. Even assuming that the trigger for Mr Busby's attendance was shock at the alleged revelation of murder it is entirely speculative whether the counsellor was told any detail which might be probative in the sense that it would touch upon Mr Busby's evidence or its credibility. I note some general observations in the minority judgment in that case - which I do not perceive to be different from the view in principle of the majority although in the application of principle the court divided five to four. The minority judgment contained: "While the production of every relevant piece of evidence might be an ideal goal from the accused's point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial. Where evidence is unavailable, the accused must demonstrate that a fair trial, and not a perfect one, cannot be had as a result of the loss. He must establish a real likelihood of prejudice to his defence; it is not enough to speculate that there is the potential for harm. Materials can be easily lost and setting too low a threshold for finding a breach of the right to full answer and defence would bring the justice system to a halt. While it is true that, with regard to certain rights, a court can infer the necessary degree of prejudice, this is not uniformly so." The "necessary degree of prejudice" is incapacity for a fair trial to be held. 38 It is not without interest that those remarks have the colour of those of Gleeson CJ in R v McCarthy unreported CCA 12 August 1994: "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed." 39 I should record that counsel also relied upon approach and application to the question of staying proceedings manifest in a series of cases at first instance in South Australia: Crawford v Bitar 7 August 1987; Duncombe-Wall v Police 2 July 1998; Commonwealth Service Delivery Agency v Bourke 16 April 1999. 40 Mention was made of the evidence concerning the movement of the body and the absence of precise observations by crime scene specialists concerning matters such as the pattern of spent shell ejection and the directions in which they lay. If these be deficiencies they are not situations which could ever be altered and it remains speculative whether such knowledge would be probative of anything. 41 In summary the following observations can be made. The clothing of the deceased (including his blanket) and the clothing of the accused might demonstrate that although muzzle and target were close at the time of discharge and therefore gunshot residue would be expected on the person and clothes of the firer, scientific testing demonstrated no such residue on the clothing of the accused. Testing is not conclusive and it is not part of the Crown case that there was such residue. The Brno rifle offers something of a distraction. I recognize the importance to investigators of the circumstances and time of its finding but, in the event it cannot be proved that it was the murder weapon. It is complained that the accused cannot prove that it was not the murder weapon. If she did, the consequence would be rejection of evidence concerning it. The identical consequence is within the jurisdiction of a trial judge to grant. 42 The presumptive test result on the nightgown is, I suggest, highly vulnerable to rejection if objection is taken. The potential probative value of the bloodstained glass is obscure. 43 It is not necessary to recapitulate my view about the missing counselling records. 44 It should be remarked that the jurisdiction to stay must necessarily be exercised with foresight and it is requisite to foresee that a fair trial cannot be had. This is quite different from appellate review where assessment is made whether anything has happened to render a trial that has taken place unfair. The protections inherent in the latter process are not lost and remain constant. 45 It is self evidently a matter for regret that the physical exhibits and the records are not available and nothing I have said should be taken as treating the matter as insignificant. I am, however, unpersuaded to the conclusion that the circumstances, singly or in combination, are such that it can be determined that a fair trial cannot be had. 46 The application for permanent stay of proceedings is refused. ********** Last Modified: 09/30/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.