New South Wales Court of Criminal Appeal CITATION : R v Hatfield [1999] NSWCCA 340 FILE NUMBER(S) : CCA 60569/99 HEARING DATE(S) : 19 October 1999 22 October 1999 JUDGMENT DATE : 28 October 1999 PARTIES : Regina Irena Hatfield JUDGMENT OF : Sully J at 1; Hulme J at 2; Hidden J at 64 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Grove J COUNSEL : RD Ellis - Crown P Byrne SC; SJ Stanton - Appellant SOLICITORS : SE O'Connor - Crown SA Teen - Appellant CATCHWORDS : Criminal Law; Murder; Stay of Proceedings DECISION : Leave to appeal refused - 31 - IN THE COURT OF CRIMINAL APPEAL No 60569/99 SULLY J HULME J HIDDEN J Thursday, 28 October 1999 REGINA -v- Irena HATFIELD JUDGMENT 1 SULLY J: I agree with Hulme J. IN THE COURT OF CRIMINAL APPEAL No 60569/99 SULLY J HULME J HIDDEN J Thursday, 28 October 1999 REGINA -v- Irena HATFIELD JUDGMENT 2 HULME J: These Reasons arise out of an application for leave to appeal, pursuant to the provisions of Section 5F of the Criminal Appeal Act, 1912, against a decision of Grove J given on 30 September 1999, refusing an application for a permanent stay of proceedings against the Applicant on a charge of murder. 3 The death, the subject of the charge was of the Applicant's husband and occurred on or about 19 April 1985 at Maroubra. An inquest into his death was held on 17 June 1986. The charge against the Applicant was preferred on 13 June 1997. The Applicant was committed for trial on 18 September 1998, arraigned on 25 March last and 8th November next is scheduled as the day for commencement of that trial. The application for a stay of proceedings was made on 6 August 1999 and Grove J made his decision refusing a stay on 30 September last. The appeal was heard on 22 October. 4 Most of the facts and evidence against which Grove J's decision was made are recounted or summarised in His Honour's reasons and it is convenient to quote from them:- "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. … 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. (Later) he … 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 Christopher 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 (worn by the Applicant) had given a positive result. 5 Evidence before Grove J showed that since 1985 or 1986 the police or other authorities have lost:- (i) The Brno brand .22 calibre firearm and silencer (ii) Clothing worn by the accused at the time. (iii) The clothing worn by the deceased. (iv) A woollen blanket which was partly covering the deceased when he was found. (v) A glass from the room in which the deceased was found and on which were some bloodstains. 6 It has been submitted on behalf of the Applicant that the evidence as to the circumstances of the loss of these items is somewhat incomplete. I am prepared to assume this is so. It is not necessary to recount that evidence. Grove J's Reasons continued:- "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. 16 … 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 and 4cm 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." 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 Burnett (Exhibit A). What are missing are the notes relating to the first thirteen of a longer series of consultations with Mr Busby. 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." 7 In fact, what are missing are the notes of 13 counselling sessions in 1996; and notes of the first session in 1997. Notes of later consultations have been produced, together with other records, including some which give a general description of the nature of, I infer all, consultations. 8 Not surprisingly, the absence of the counselling notes attracted the attention of the legal advisers of the Applicant; and on the occasion of answering subpoenae, or during the course of the committal proceedings Miss Burrett, Mr Busby and Mr Peinecke were questioned on the topic. Miss Burrett had no personal knowledge of the notes; and, so far as her evidence is concerned, it is sufficient to refer to her evidence that about 3 people had access to the filing cabinets in which the records of Mr Busby and other students who availed themselves of the University's counselling were kept. It may be noted also that in part Mr Peinecke's explanation for what has occurred was given during questioning of him by Miss Burrett. 9 The evidence before Grove J also revealed that counselling had commenced on 31 May 1996; had continued intermittently up to about April 1998; and had occurred on, inter alia, 6 and 8 April 1998. On 31 March or 1 April 1998; at the instigation of the Applicant's legal advisers, a subpoena was served on Mr Peinecke, requiring the production of, inter alia, records relating to any attendance by him upon, or consultation with, Mr Busby. Later another subpoena was served on the Southern Cross University calling for those records.. 10 According to evidence Mr Peinecke has given, on or about 1 April he noticed, and following a thorough search, on 7 April he advised his superior, that he was unable to locate all of the counselling records for Mr Busby. Mr Peinecke also provided an explanation as to how the missing notes became, or may have become, separated from the balance; and why he did not report the fact of the loss until about a week after he first discovered it. He has said that he does not see how the documents could have been stolen; and has speculated that they may have been shredded by mistake. Following receipt of his subpoena, Mr Peinecke consulted a legal adviser because, he said, he was concerned at the loss of professional confidentiality that production of the documents under the subpoena would involve. On 6 April he told Mr Busby of the subpoena, although he denies telling him that documents were missing. At least implied in Mr Peinecke's evidence is a denial that he destroyed or has hidden the notes. It should also be recorded that although the questions and answers are not completely clear, it would seem that Mr Peinecke categorised, perhaps for the purposes of the other records referred to above which were produced, the issues, or some of the issues, arising in the counselling sessions as "legal". 11 A short extract from the questioning of Mr Peinecke on the occasion of the return of subpoenae should be quoted:- "Q Do you today have any recollection at all of the contents of the cards that have gone missing? Q I only want a yes or no on that one. Do you have any recollection today as to the contents of those cards that went missing? Just answer yes or no. (no verbal reply) BENCH Perhaps some. In other words we don't want to hear what it is that you know or don't know. A No. I have to say no, it's all black and white but if you ask me then I have to say no. MOTBEY Q You have no recollection of any of the things that Busby's told you, in those consultations? A We're providing 1,000 interviews per year to clients. I cannot – Q Sir, this— A If I was remembering every session I would go crazy. So I have no recollection of the details of the sessions which happened a year ago, I'm sorry about that. Q What about the substance, the burden of what he was putting to you? A I cannot help you with that." 12 Further questioning on the topic was stopped. 13 Mr Busby's evidence at the committal proceedings was that on a counselling visit on 6 April 1997 he was informed of the fact that the notes existed and had been subpoenaed; that he wrote to the University on that or the following day expressing concern at the possible loss of confidentiality; but that he had no further knowledge concerning the notes. 14 It should also be mentioned that two of the conversations between Mr Busby and the Applicant, in May and November 1996, were in fact secretly recorded by him. Against a background of circumstances existing in 1985 and about which there is other evidence, the transcripts of those contain clear evidence of implicit admissions by the Applicant that she killed her husband and had told Mr Busby so. In a later conversation of 30 January 1997, apparently recorded under warrant, the Applicant is more equivocal; part of the conversation might be regarded as an admission but there are also denials in it. Of course, it may be that Mr Busby's recordings will not be admitted into evidence, although that may depend on the operation of s5 of the Listening Devices Act 1984. In any event s13 of that Act gives the trial Judge a discretion in the matter. 15 In reliance on matters to which I have referred, the Applicant submits:- 1. That Grove J made some erroneous findings in the course of coming to his conclusions. 2. That the loss since 1985 or 1986 of the firearm and clothing etc. has prejudiced the Applicant. 3. That the loss of the counselling notes has prejudiced the cross-examination of Mr Busby and the challenging of his evidence. 4. That the Court should infer that the loss of the notes has been due to deliberate or grossly negligent conduct on the part of Mr Busby and/or Mr Peinecke and, in combination with the prejudice to which reference has been made, leads to the conclusion that the trial of the Applicant would be unfair and should be stayed. 5. That by parity of reasoning with the decision of the High Court in Ridgeway v R (1994-5) 184 CLR 19, the evidence of Mr Busby would be required to be excluded; that the Crown case is dependent on that evidence; and thus is bound to fail. 6. That whether one has regard to the loss of the firearm, clothing etc, or to the loss of the counselling notes, or their loss in the circumstances contended for, or a fortiori when one takes these events in combination, one is forced to the conclusion that any trial of the Applicant would be unfair. 7. In consequence, the proceedings should be stayed. 16 The principles governing the exercise of the Court's discretion to grant as is sought by the Applicant are not in dispute. The topic has been the subject of consideration in e.g. Jago v District Court (1989) 168 CLR 23 and The Queen v Glennon (1992) 173 CLR 592. The power will only be exercised in exceptional, - Jago at 31, 60; or extreme, - Jago at 34, Glennon at 605-616, - circumstances and only where there exists a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" - Barton v The Queen (1980) 147 CLR 75 at 111, Jago at 34, R v Tolmie (unreported, CCA, 7 December 1994). Furthermore, as was said in R v Tolmie:- "The right to a fair trial is entrenched in the criminal justice system, to ensure that innocent people are not convicted of criminal offences, and a stay of proceedings may be granted to prevent an unfair trial: J ago v District Court (at 29,56,72). But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial: ibid (at 33,72). In that sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed: ibid (at 30). The grant of a stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given: ibid (at 31, 60 75); The Queen v Glennon (at 605, 615-6). The onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by the refusal of a stay is in the relevant sense unacceptable, to the extent that the trial would be unfair: Barron v AG (1987) 10 NSWLR 215 at 219, 233; Regina v Basha (1989) 39 A Crim R 337 at 338; Regina v Laurie Peter Helmling (unreported CCA, 11 November 1993 at 4)." 17 Remarks of Gleeson CJ in R v McCarthy & Ors (unreported CCA, 12 August 1994) are also apposite:- "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. In this connection I refer to what was said in R v Adler (unreported CCA, 11 June 1992) and R v Goldberg (unreported CCA, 23 February 1993)." 18 Furthermore, it must be borne in mind that, absent some demonstrable error, the Applicant bears in this Court the additional disadvantage of having to overcome the exercise by Grove J of what is in essence a discretionary judgment - see House v R (1936) 55CLR 499. 19 Against the foregoing background, I turn to the submissions put by the Applicant. 1. That Grove J made some erroneous findings in the course of coming to his conclusions. 20 The particular findings of Grove J said to be erroneous, and thus enabling the Appellant to avoid the restrictions to which an appeal based upon a discretionary judgment is usually subject, are those in the last sentences of paragraphs 27 and 28 of His Honour's Reasons. 21 Mr Busby gave evidence in the course of the committal proceedings and to the effect that he had first seen Mr Peinecke on the day after the Applicant had told him about the murder; and, at least in part, that he had commenced counselling because of what the Applicant had told him. In the face of this evidence it seems to me that the last sentence in paragraph 27 above understates the conclusion which should have been drawn. 22 However, it does not seem to me that that error affects the conclusion expressed in the final sentence of paragraph 28. Whether for any other reason that conclusion is erroneous is the subject of discussion in the balance of these Reasons. 2.That the loss since 1985 or 1986 of the firearm and clothing etc. has prejudiced the Applicant. 23 If, as Grove J recorded, the Crown cannot prove that the Brno rifle was the weapon used to kill the Applicant's husband, its only relevance would seem to be to establish that there was, within moderate distance, - there is some evidence it was found about 2 kms. from their home, - a weapon which might have been used. The rifle was examined by forensic experts at the time, and no suggestion has been made that there was, or might have been, anything about the rifle which could tend to prove it was not fired by the Applicant. In this situation it is impossible to see how the Applicant is prejudiced by the fact the rifle has disappeared. 24 At first blush, the absence of the blanket and the clothing of the deceased and Applicant is of more significance. Gunshot residue on the blanket or clothing of the deceased may have led to the conclusion that the weapon which was used was discharged at close range. There is conflicting evidence whether there was such residue apparent. There is evidence which suggests that any person who fired the weapon in those circumstances would have had blood or other parts of the deceased's body splattered onto his, or her, or their, clothing. Had the Applicant's clothing not been lost, found free of such matter, it would have proved, so the argument went, that the Applicant did not fire the shots which killed her husband. Similarly, there is evidence which suggests that the clothing worn by the author of the shots at the time they were fired would have had gunshot residue on it. On this account also, so it is submitted, the Applicant has lost the opportunity of proving her innocence. 25 As the reasons of Grove J make clear, there is evidence which shows that these various articles were examined back in 1985 and 1986; and that records of observations then made do exist. These records go some way towards making up for the absence of the primary evidence. Furthermore, despite the report of Ms Clancy referred to in paragraph 7 of Grove J's reasons, the Court was informed that, based on the examinations then conducted, the Crown is prepared to concede that the clothing taken from the Applicant by the police was free of gunshot residue or blood of any significance. 26 Whether, despite these matters, the Applicant has been significantly prejudiced by the loss of the clothing and blanket it is unnecessary to determine, for there is a more fundamental factor to which regard must be had. The clothing of the Applicant taken by the police was in part that which she was wearing when they attended in response to her call; and, in part some other clothing that she told them she had been wearing that night. In effect, the sole source of information suggesting that she was not wearing other clothing at the time of the deceased's death, is the Applicant. Thus any inference which could be drawn from the absence of blood etc or gunshot residue on the Applicant's clothing is ultimately dependent on accepting her word on that topic. 27 And her word on that topic is presumably worth as much as her word on the topic of whether she killed the deceased - a matter she denied in 1985. Putting aside any admissions she may have made to Ms Pereira and Mr Busby, if what she has said, or says, on one of these topics is accepted, it is virtually inevitable that her word on both will be. Thus I am not persuaded that the absence of the clothing she says she wore is significant. It must be borne in mind that no weapon was found at the premises of the Applicant and the deceased after the shooting. Whoever disposed of the firearm could have equally well disposed of any clothing worn at the time. 28 The Court's attention was not drawn to any evidence, nor was there any submission, which suggested that the glass which was in the room in which the deceased was found was of any significance. In these circumstances, I am not disposed to infer that there is any unfairness arising from its absence. 29 I am not persuaded that the absence of the items the subject of this submission has prejudiced the Applicant. 3. That the loss of the counselling notes has prejudiced the cross-examination of Mr Busby and the challenging of his evidence. 30 Without the notes themselves, it is impossible to conclude that the cross-examination of Mr Busby has or has not been prejudiced. There may be no, or so little, inconsistency between the notes and his evidence that the cross-examiner might have chosen not to refer to them at all or to base any questions upon them. Indeed if, as appears may well be the case, Mr Busby's attendance on the counsellor was inspired at least in part by some apparent confession by the Applicant, it is a reasonable possibility that any notes may provide some corroboration of his evidence. That said, it may be conceded that the loss of the notes may have prejudiced the cross-examination or challenging of Mr Busby. 4. The Court should infer that the loss of the notes has been due to deliberate or grossly negligent conduct on the part of Mr Busby and/or Mr Peinecke and, in combination with the prejudice to which reference has been made leads to the conclusion that the trial of the Applicant would be unfair and should be stayed. 31 Particularly given the desire on the part of both Mr Busby and Mr Peinecke that the contents of the notes remain confidential, the fact that they disappeared, or that their disappearance first became apparent, shortly before that confidentiality was to be lost, certainly provides grounds for suspicion. 32 If one makes the assumption that Mr Busby told Mr Peinecke that the Applicant had confessed to killing her husband, the last two of Mr Peinecke's answers which I have quoted may tend to strengthen that suspicion. On the other hand, Mr Peinecke did not express either answer in terms of "I do not know". A desire to maintain the confidentiality of Mr Busby's communications with him - a perfectly legitimate aim, given the terms of s126A et seq. of the Evidence Act - may have been the inspiration for his use of the word "details" in the penultimate answer, and of the words "I cannot help you with that" in the last answer. 33 This Court did not see either Mr Busby or Mr Peinecke give evidence. Mr Peinecke, as has been said, did provide an explanation for the loss of the notes. There is no finding by any tribunal before which Mr Busby or Mr Peinecke did appear which enables any conclusion to be drawn as to their credibility. It is just not possible, in the face of their evidence, for this Court to conclude that the loss of the notes was deliberate, or due to grossly negligent conduct on the part of either of them. 5. The decision in Ridgeway v R requires the exclusion of Mr Busby's evidence. 34 In Ridgeway v R (1994-5) 184 CLR 19, the High Court ordered, inter alia, that there be a permanent stay of criminal proceedings. It did so on the basis that apart from some evidence which the Court held had to be excluded, there was none which could result in the conviction of the Appellant in respect of the offence with which he had been charged. 35 The evidence which the majority of the Court held had to be excluded, was to the effect that certain heroin had been imported. The grounds for the exclusion of that evidence were stated by Mason CJ, Deane and Dawson JJ as follows:- "In these circumstances, the above mentioned factors - i.e. grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted - combine to make the case an extreme one in which the considerations favouring rejection of evidence on public policy grounds are extremely strong. Against those considerations, one must weigh the legitimate public interest in the conviction and punishment of the Appellant for the criminal offence of which he is guilty. The weight of that consideration in the present case is reduced by the fact that the Appellant's possession of the heroin at the time he was apprehended constituted any one of a variety of offences against the law of South Australia of which illegal importation was not an element… In all the circumstances, the considerations of public policy favouring an exclusion of evidence of the illegal importation of the heroin clearly outweigh the considerations of public policy favouring the conviction of the Appellant of an offence under s233B(1) of the Act." 36 None of the matters which led to the exclusion of the evidence in Ridgeway v R is present here. In this case, taking the evidence at its highest from the point of view of the Applicant, the offending conduct of the destruction of relevant evidence was by one or two witnesses who, though they may be important in the presentation of the prosecution case, have no official standing. Such circumstances fall far short of the public policy considerations which led to the rejection of evidence against Mr Ridgeway. 37 Furthermore, there is no rule of law that, because notes which might have been of assistance in the cross-examination of Mr Busby are missing, Mr Busby's evidence in totality must be excluded. There is no analogy between the decision in Ridgeway v R and the instant case. 6.That whether one has regard to the loss of the firearm, clothing etc. or the loss of the counselling notes, or their loss in the circumstances contended for, or a fortiori when one takes these events in combination, one is forced to the conclusion that any trial of the Applicant would be unfair. 38 Although I have recognised that prejudice to the Applicant may have occurred in consequence of the loss of at least some material, it does not follow that any trial will be unfair. This is not a perfect world. Sometimes crimes are not discovered until long after they have occurred; and as the passages quoted from R v Tolmie and R v McCarthy make clear, not infrequently some items of evidence or witnesses will not be available. Some assessment of the significance of not only the unavailable, but also of the available, evidence is required. 39 Important in this connection is the evidence of Ms Pereira and the taped recordings of conversations between Mr Busby and the Applicant. In itself, the evidence of Ms Pereira is unaffected by any of the losses of evidence or documents which have occurred. If a jury were to accept that the Applicant did confess to Ms Pereira that she had fatally shot her husband, the jury would be entitled, with little more than evidence of the deceased's death, to convict the Applicant - McKay v R (1935) 54 CLR 1. In that regard, it may be accepted that the evidence of Ms Pereira in the committal proceedings provided grounds for arguing that her evidence of confession should not be accepted by a jury. However, it is not possible to say that that evidence would not be accepted; and it would thus, not be appropriate for this Court to approach the matter on any other basis than that there is a possibility either way. 40 Some of these considerations apply in the case of the recorded conversations between Mr Busby and the Applicant. Particularly in light of the terms of s13 of the Listening Devices Act, it would not be appropriate now to assume that any unlawfulness of the recording will operate so that such evidence will be rejected. And even if one were to take the view that the loss of the counselling records so prejudiced any challenge to Mr Busby's evidence that the Applicant had confessed to him on occasions not recorded, that that evidence should be rejected, it by no means follows that Mr Busby's evidence identifying the tapes and persons speaking would be treated similarly. Again, if accepted, such evidence, and little more than evidence of the deceased's death, would be sufficient to found a conviction. 41 Of course, it must be recognised that explanations may exist for the making by the Applicant of statements that she killed the deceased which do not necessarily require the conclusion that she did. However, nothing appears in the evidence before Grove J to make such explanations likely. 42 The circumstances that a stay will only be granted where there exists a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences"; and that the remedy is discretionary, mean that account must also be taken of the powers available to a trial Judge to eliminate or reduce the risk of unfairness. Within these are the various powers and discretions provided for by the Evidence Act. Without any attempt to be exhaustive, S135 empowers a Court to refuse to admit evidence if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to a party while s137 obliges a Court to refuse to admit evidence adduced by the Crown if the probative value of the evidence is outweighed by the danger of unfair prejudice to an accused. 43 The use of these powers is likely to ensure that the Crown gains no unfair advantage from evidence relating to the missing firearm, clothing etc. Of course, the powers are unlikely to cure the absence of any evidence which would tend to exculpate the Applicant. I have largely dealt with that latter topic; but it must not be forgotten that the lateness of complaint in many sexual assault matters is calculated to preclude the possibility of any alibi evidence being available to an accused and yet the approach of the Courts has not been to stay all such actions. 44 In support of this and other submissions, counsel appearing for the Applicant took the Court to a number of reported decisions. In that many of them were decisions on their own facts, or reflected considerations not present here, they are of limited value, particularly as the power which the Court is now asked to intervene if it concludes that Grove J erred, is of a discretionary nature on which minds might legitimately differ. It is, however, appropriate that I refer to at least some of these decisions. 45 Two were decisions of Judges of the Supreme Court of South Australia. The first was Duncombe-Wall v Police (unreported, Lander J, 2 July 1998). The Defendant was charged with making threats, and thereby causing fear, in the course of a domestic dispute. There was a significant issue as to the credibility of the defendant on the one hand and his wife and son on the other. Two 000 calls had been made during the evening. There was a significant dispute on the evidence about the circumstances giving rise to the telephone calls and who in fact called the emergency number. Whilst the question of the telephone calls was not central to the issues in the case, it was a very important matter on the question of the credibility of the witnesses and had the potential to corroborate the Appellant's account . According to Lander J, "If his evidence had been corroborated on that topic, necessarily it meant that the evidence of his former wife and his son had to be rejected on that topic"; and "if they had been discredited, or found to be inaccurate, in respect of this matter, it might have been difficult to reach a conclusion that their evidence was sufficiently reliable to support a finding that the charge had been proved beyond reasonable doubt." 46 Shortly after proceedings were brought, the solicitor for the defendant had written to the police asking for the tape recording of the calls to be preserved, but it had subsequently been reused, and the relevant record obliterated. Thereby, in the view of Lander J, the defendant had lost a real opportunity to put the whole of his case to the magistrate, there being no other evidence directly in point, and no direction "which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence." His Honour proceeded:- "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 (of) interfering 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. Having regard to the efforts to which the Appellant went to ensure the preservation of the evidence, and the failure of the Respondent to prevent the destruction of the evidence, and the importance of that evidence in the assessment of the credibility of the witnesses in a case in which credibility was all important, this is one of those rare cases where an order ought to be made." 47 In light of the relativity perceived between the importance of the missing evidence, and the available evidence in that case, I do not see the decision as governing what should occur here, albeit an analogy between the missing credibility evidence in each case is apparent. 48 Commonwealth Service Delivery Agency v Bourke [1999] SASC 154 was an appeal against a decision of a magistrate staying proceedings on 70 charges alleging that the defendant had knowingly obtained a benefit which was not payable, contrary to sections of the Social Security Act. Prior to the charges being brought, the fortnightly forms which the defendant had lodged in order to apply for benefits were destroyed in accordance with the Archives Act. The Crown seems to have intended to prove its case in part by computer records which I take to be incomplete secondary evidence of the claims. The defence was, apparently, that the defendant had filled out the forms as accurately as he was capable of completing them at the relevant time. 49 Wicks J recognised, in accordance with Walton v Gardiner (1993) 177 CLR 378, that he had to undertake a balancing exercise between the right of an accused to a fair trial, and the need to punish people who broke the law. However, taking the view that the "fortnightly forms were the only evidence capable of corroborating the respondent's version of events, and now they are gone forever"; and that for the trial to continue in that circumstance would be unfair; His Honour dismissed the appeal. In totality the circumstances here are significantly different from those which Wicks J had to consider. 50 This Court was also referred to a decision of the Canadian courts in R v Carosella, the report of which in the Supreme Court is recorded as [1997] 1 SCR 80 and is also to be found in 112 C.C.C. (3rd) 289. Having regard to the emphasis placed on that case on behalf of the Appellant, it is appropriate to refer to it at some length. In 1992 a complainant had attended on a sexual assault crisis centre for advice concerning the laying of charges for sexual abuse she alleged had occurred at the instance of the respondent in 1964. He was subsequently charged. In about October 1994, prior to the commencement of the trial an order was made for production of the centre's file. When produced it did not contain notes of the complainant's interview, these having been destroyed in April of that year pursuant to a policy of the centre to shred files with police involvement prior to being served with notices requiring their production. The social worker who had interviewed the complainant had no recollection of the contents of the destroyed notes. 51 The trial Judge granted a stay of proceedings after concluding that the notes would, more likely than not, tend to assist the accused. The Court of Appeal reversed this decision. The Supreme Court, by a 5 to 4 majority, restored it. The issues dealt with by the majority were defined in the Reasons of Sopinka J as:- "1. Did the failure to produce the notes of the interview of the complainant by reason of their destruction constitute of violation of the Appellant's Charter rights? 2. If the Appellant's C harter rights were breached was a stay based on s24(1) (of the Charter ) the appropriate remedy." 52 The Charter was the Canadian Charter of Rights and Freedoms. Sopinka J went on to state that in view of his conclusions in respect of those issues, it was unnecessary for him to consider whether in the circumstances an abuse of process had been made out. 53 In his consideration of the first question Sopinka J took the view that the question of the degree of prejudice suffered by an accused was not a consideration to be addressed in the context of determining whether a substantive Charter right had been breached; but was one which fell to be considered only at the remedy stage. Taking the view that there was a reasonable possibility that the information contained in the notes that had been destroyed was logically probative in relation to the credibility of the complainant, His Lordship held that "the destruction of this material and its consequent non-disclosure resulted in a breach of the Appellant's constitutional right to full answer and defence." On the second question Sopinka J was of the view that the result reached had been right. His Lordship acknowledged that a judicial stay of proceedings was an extraordinary remedy that should only be granted in the clearest of cases. It may be inferred that His Lordship endorsed the conclusion of the trial Judge that credibility was a major issue in the case; and in consequence, the destruction of the documents was very significant. His Lordship observed:- "Here the alleged incidents with which the accused is confronted occurred some 30 years ago and I find that the accused has been seriously prejudiced being deprived of his basic right of the opportunity to cross examine the complainant on previous statements made by her as to the very incidents of sexual misconduct between her and the accused which are the subject matter of the indictment. …The accused has had his ability to make full answer in defence substantially impaired… and, therefore, I find that his rights have been infringed under ss7 and 11(d) of the Charter and it would be unfair to allow the prosecution to proceed where the accused has been deprived of that opportunity to cross examine the complainant on statements previously made when substantially the whole of the Crown's case is based on the credibility of the complainant." 54 His Lordship described as further important factors the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence; and "irreparable prejudice to the integrity of the judicial system if the prosecution were continued." In explaining the second of these matters, His Lordship drew attention to the fact that the destruction of documents was carried out by an agency which received public money, and whose activities were scrutinised by the Government, and which was "required to develop a close liaison with justice agencies and secure material under its control which was not to be disclosed except where required by law". His Lordship went on:- "Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat processes of the court. The agency made a decision to obstruct the course of justice… Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced or admitted is for the courts. It is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally." 55 L'Heureux-Dub J, delivering the judgment of the minority, took the view that there needed to be actual prejudice demonstrated before a breach of the accused's rights could be found, and that the absence of the material created "no more that a mere speculative risk to the Appellant's rights"; and that, as the Court of Appeal had found, no "realistic appraisal of the probable effect of the lost notes can support the conclusion that the accused's right to make full answer and defence was compromised"." In that connection Her Lordship remarked that "despite the findings of the trial judge, there is absolutely nothing on the record to suggest that there was any discussion between the complainant and the counsellor about the actual details of the events themselves." 56 Her Lordship went on to consider the topics of remedy and of abuse of process; but there is nothing in her remarks on those topics which advances the discussion here. 57 In Hung Duc Vu v Her Majesty the Queen, indexed as R v La [1997] 2 SCR 680 the Canadian Supreme Court, constituted by the same Judges as had decided Carosella v R, had occasion to consider a situation where a tape recorded interview with a complainant had been accidentally lost by a police officer. The Court unanimously held that a stay of proceedings should not have been granted at first instance. It is unnecessary to say more about this case than to record some remarks of the majority concerning Carosella:- " The two cases, however, are clearly distinguishable. In Carosella the documents which were destroyed were relevant and subject to disclosure under the test in O'Connor, supra. The conduct of Sexual Assault Crisis Centre, destroyed the accused's right under the Charter to have those documents produced. That amounted to a serious breach of the accused's constitutional rights and a stay was, in the particular circumstances, the only appropriate remedy. Where, however, the evidence has been inadvertently lost, the same concerns about the deliberate frustration of the Court's jurisdiction over the admission of evidence do not arise. … we expressly distinguished the case from the lost evidence cases generally." 58 Obviously, there are significant similarities between the facts in Carosella and those here. On the other hand there are also major differences. One is that the remarks in that case have to be considered against the background of the constitutional rights embodied in the Charter of Rights and Freedoms. A second is identified in one of the passages quoted above: "substantially the whole of the Crown's case is based on the credibility of the complainant". As I have sought to indicate, the evidence of Mrs Pereira and the recordings made by Mr Busby, make those remarks inapplicable here. 59 Subject to one matter, I do not find in Carosella anything which significantly assists the resolution of the issues in this case. The relevant principles have been set in decisions by which this Court is bound; and the questions are simply as to the application of those principles to a particular set of facts; and as to whether, in that exercise, Grove J erred. 60 The one matter to which I referred at the beginning of the preceding paragraph is contained in the minority judgment in Carosella. At paragraphs 104 and 105, L'Heureux-Dub J points out that one should not look at the issue of missing evidence in a vacuum; and that one must take into account certain fundamental concepts inherent in the criminal justice system. Difficulty may well be experienced by an accused in gathering evidence to rebut a charge. The potential for such difficulty may well be one of the reasons why the prosecution bears the heavy onus of proving guilt beyond a reasonable doubt, and is required to make all relevant evidence in its possession available. I do not find it necessary to rely on such reasoning in this case; but the point is worth recording. The proceedings should be stayed 61 Nothing has been put before the Court to lead me to the conclusion that Grove J erred in saying, in paragraph 28, "Í 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 it unfair that the accused should stand trial at all"; or in his decision not to stay the proceedings. I would go further . 62 Notwithstanding the loss of Mr Peinecke's records and the other items to which reference has been made, and any prejudice to the Applicant which may have ensued in consequence, the circumstances of the case are such that the only appropriate decision at which Grove J should have arrived was to refuse a stay. That is not to say, of course, that at the trial the Judge should not properly limit pursuant to whatever powers are available, the evidence to be called. That will be a decision for whoever is the trial Judge. Nothing in these reasons is intended to restrict, or indeed to indicate, the way in which those powers should be exercised. 63 Grove J's decision was interlocutory; and the matter is not, in my view, one meriting leave to appeal. Leave to appeal should be refused. IN THE COURT OF CRIMINAL APPEAL No 60569/99 SULLY J HULME J HIDDEN J Thursday, 28 October 1999 REGINA -v- Irena HATFIELD JUDGMENT 64 HIDDEN J: I agree that this appeal must fail, substantially for the reasons given by Hulme J. Given the significance of the matters raised, in particular, the loss of the counsellor's notes, I would grant leave to appeal. However, the appeal must be dismissed. 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. 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