New South Wales Supreme Court CITATION : The Director of Public Prosecutions v Genders [2000] NSWSC 62 CURRENT JURISDICTION: Supreme Court FILE NUMBER(S) : SC 12811/99 HEARING DATE(S) : 9 February 2000 JUDGMENT DATE : 23 February 2000 PARTIES : The Director of Public Prosecutions v Christopher Eric Genders JUDGMENT OF : Brownie AJ at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Mr W Evans SM JUDICIAL OFFICER : COUNSEL : Mr Marien (for the plaintiff) Mr Porter QC & Mr Barber (for the defendant) SOLICITORS : S E O'Connor (for the plaintiff) Walter Madden Jenkins (for the defendant) CATCHWORDS : No question of principle LEGISLATION CITED : Crimes Act 1900 s 309(3)(e) Suitors Fund Act 1951 CASES CITED : R v Tolmie CCA 7 December 1994 unreorted Hunt CJ at CL DECISION : Appeal allowed. Orders made 22 October 1999 permanently staying prosecution of defendant. Grant defendant a certtificate under the Suitors Fund Act. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BROWNIE, AJ Wednesday, 23 February 2000 12811/99: THE DIRECTOR OF PUBLIC PROSECUTIONS v CHRISTOPHER ERIC GENDERS JUDGMENT 1 HIS HONOUR: On 30 April 1999 a police officer laid four informations against the defendant, a police constable. In three of those cases it was alleged that the defendant had offended against section 309(3)(e) of the Crimes Act 1900 in that without authority or lawful excuse he had intentionally obtained access to data stored in a police computer, which he ought reasonably to have known related to the personal affairs of another person; and in the fourth case it was alleged that he had attempted to do that. The various offences were said to have occurred between 17 February 1994 and 7 October 1995. 2 On 27 August 1999 the plaintiff took over the prosecution of these cases. The defendant moved the Local Court for orders dismissing them, by reason of the delay that had occurred, and on 22 October 1999 Mr Evans SM granted that relief. The plaintiff now appeals from the orders then made. 3 The delay which occurred prior to 30 April 1999 was gross, and the plaintiff did not attempt to justify, or even explain it. It was, of course, delay that occurred before the plaintiff took over the prosecutions. The delay between the alleged offences and the laying of the informations ranged from well over 5 years, to almost 4 years, and, it seems, the police service had admissions from the defendant as early as 27 March 1996 that should have been sufficient to make it clear that prosecutions might well be appropriate, and that delay was inappropriate. 4 The relevant principles are not in issue. In R v Tolmie , Court of Criminal Appeal, 7 December 1994, not reported, Hunt CJ at CL, with whom the other members of the Court agreed, reviewed the authorities, and at 4 - 5, omitting citations, said: "As to these matters, it is necessary to examine briefly the basis upon which a permanent stay will be granted. 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 that the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences … 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 fair trial … 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 … In that sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed … The grant of a stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given … The onus lies on the applicant to demonstrate that the disadvantage or prejudice which he will suffer by the refusal of a stay is in the relevant sense unacceptable, to the extent that the trial would be unfair …" 5 In this case the learned magistrate was, with perfect propriety, very critical of the long and unexplained delay that took place before the informations were laid, but in my respectful view, he erred in attaching too much importance to that aspect, and not enough importance to the question whether the trial would be unfair, in some way that could not be cured; and the evidence did not establish unfairness answering that description. 6 On appeal, the case was argued differently to the way it had been argued in the Local Court, and more emphasis was placed upon the ways in which the delay was unfair to the defendant. Thus, it was submitted that, as a serving police constable, he had worked on in the police service for years, having been told in effect that it was known that he offended, but he was left, unprosecuted, as it were on some form of probation, and having endured that, he was then prosecuted; and he had been adversely affected in his employment in other ways, for example in terms of interpersonal relationships, and possible promotions and transfers. He submitted that the proper inference was that the police service had prosecuted him for an improper purpose, given the circumstances, including his continued employment in the service; and that his continued employment in the service under this sort of pressure amounted to oppression. 7 To these submissions there are two effective answers: first, the evidence does not support these conclusions; and secondly, these matters go to the unfairness of the way in which the police service has treated the defendant, and not to the unfairness of the trial. They might well be matters of great significance, if and when any question as to penalty arises, but they do not go to the fairness of the trial. 8 I allow the appeal, and set aside the orders made on 22 October 1999 permanently staying the prosecutions of the defendant. I grant to the defendant a certificate under the Suitors Fund Ac t. ********** Last Modified: 09/25/2000 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.