New South Wales Supreme Court CITATION : R v Fleming [2007] NSWSC 337 HEARING DATE(S) : 11 April 2007 JUDGMENT DATE : 12 April 2007 JURISDICTION : Common Law Division Criminal List JUDGMENT OF : Studdert J DECISION : The application for a permanent stay of proceedings is refused. Jago v District Court (New South Wales) (1989) 168 CLR 23 R v Adler (unreported, NSWCCA, 11 June 1992) R v Birdsall (unreported, NSWCCA, 3 March 19972) CASES CITED : R v Gilham [2007] NSWSC 231 R v Goldburg (unreported, NSWCCA, 23 February 1993) R v RWO [2002] NSWCCA 133 R v Tolmie (unreported, NSWCCA, 7 December 1994) PARTIES : Regina v David Fleming FILE NUMBER(S) : SC 2005/2543 COUNSEL : T. Hoyle SC (Crown) M. Austin (Accused) SOLICITORS : S.C. Kavanagh (Crown) Nyman Gibson Stewart (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 12 April 2007 2005/2543 REGINA v DAVID FLEMING JUDGMENT (Re: application for stay of proceedings) 1 HIS HONOUR: The accused has made application for an order that presentation of an indictment in this matter be permanently stayed. The basis of the application is that there has been extreme delay and to continue with the prosecution would be an abuse of process. 2 The accused moves on the affidavit of Jasmina Ceic sworn 11 April 2007. 3 Mr Austin very properly conceded that the delay that has occurred was not caused by fault attributable to the prosecution. The murder is alleged to have been committed on 18 February 1984. Investigations conducted thereafter were unsuccessful, and it was not until October 2004 that a task force was formed to reinvestigate the death. In that period of time scientific advances have been made in DNA profiling and in associated analysis. Once a DNA profile had been obtained from the accused in December 2004 and, according to the prosecution, a match had been made, police acted swiftly in having the accused extradited from Victoria to New South Wales and in having him charged with the offence of murder on 19 January 2005. 4 It is unnecessary for present purposes to trace the history of the matter since then because Mr Austin again properly acknowledged that there was no blame attributable to the prosecution since January 2005 in bringing the accused to trial. 5 Whilst Mr Austin acknowledged that the delay is blameless, nevertheless he submitted that there is prejudice such as would render any trial of the accused an abuse of process. 6 This brings me to the affidavit of Jasmina Ceic, the solicitor acting for the accused. This affidavit deals with certain areas in relation to which the accused contends evidence has been lost by reason of the effluxion of time. The contention is advanced through the affidavit that the accused has an alibi but that evidence in relation to it is no longer available. Ms Ceic's instructions are that on 15 February 1984 the accused received a telephone call from a person named Thelma Markovitch advising him that his son had been injured in an accident. At the time the accused was with a person by the name of Carol Reid. He hitched a lift from a truck driver to North Queensland, where he met Thelma Markovitch. The accused's instructions to his solicitor are that the information that his son had been injured was untrue. According to the accused, he thereafter stayed in North Queensland for two weeks. Ms Ceic's affidavit addresses measures taken to establish that alibi. Bank records have been sought and records from a hire car company. No records are available going back that far. Efforts to locate Thelma Markovitch have been unsuccessful and so, too, have been efforts to locate Carol Reid. Attempts to trace any person who saw the accused in Queensland at the critical time have proved unsuccessful. The driver of the vehicle in which the accused travelled to Queensland has not been located. 7 The accused was receiving social service benefits in 1984 but there are no Centrelink records for the critical period evidencing receipt of benefits in Queensland. 8 So it is that it is submitted on behalf of the accused that the accused is seriously prejudiced in not being able to establish his alibi. 9 Another matter of prejudice raised is that the accused is unable to obtain the names of witnesses who were staying at Wallaringa Mansions, Neutral Bay at the time of the commission of the alleged murder. This is the place where the accused was living at that time but the affidavit of Ms Ceic evidences that it has been impossible to obtain any relevant lists of occupants of those premises for the period between January 1984 and 20 February 1984. 10 It is to be recognised that the courts "possess an inherent power to prevent their processes being used in a manner which gives rise to injustice": see Jago v District Court (New South Wales) (1989) 168 CLR 23 per Mason CJ at 31. In affording a safeguard for an accused person, the Chief Justice observed in Jago that "the touchstone in every case is fairness" (at p 33). His Honour went on to say (at 33-34): "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR, at pp 102, 106.; Sang [1980] AC, at p 437.; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32.. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. 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 the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker (1989) v Wingo (1972) 407 US 514; Bell v Director of Public Prosecutions [1985] AC 937, as explained in Watson (1987) 8 NSWLR 685, and Gorman v Fitzpatrick (1987) 32 A Crim R 330.. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264. To justify a permanent stay of criminal proceedings, there must be 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 (1980) 147 CLR, at p 111., per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson [1987] VR, at p 973." 11 Is the present case in the category of "an extreme case" where the granting of the relief sought by the accused should be ordered? 12 In submissions counsel referred me to no case in which a court in this State has ordered a stay of proceedings because of the loss of potential witnesses, although it is to be accepted, of course, that a trial can be rendered unfair where evidence has been lost through the effluxion of time. I was referred to R v Adler (unreported, NSWCCA, 11 June 1992). In that case a witness potentially able to corroborate the accused died before trial and neither at trial nor on appeal to the Court of Criminal Appeal was it considered that the loss of this witness warranted a permanent stay in relation to the substantive offences. I was referred also R v Goldburg (unreported, NSWCCA, 23 February 1993). This was a case in which an alibi witness was lost to an accused through ill health. An application for a permanent stay was refused at trial and on appeal. In his judgment in Goldburg, Mahoney JA, with whose judgment Gleeson CJ and Abadee J agreed, acknowledged that the absence of the witness would reduce the accused's chances of success on his alibi defence. His Honour went on, however, to say (at p 5): "The mere fact that a witness who would otherwise have been available has died or otherwise becomes unavailable does not warrant the granting of a stay of proceedings." 13 In R v Tolmie (unreported, NSWCCA, 7 December 1994) it was held that the loss of two witnesses did not call for a stay of proceedings. In the course of his judgment, with which the other members of the court agreed, Hunt CJ at CL said: "…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 which the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences: Barton v The Queen (1980) 147 CLR 75 at 111; Jago v District Court (1989) 168 CLR 23 at 34, 65; The Queen v Glennon (1992) 173 CLR 592 at 615-616. 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: Jago 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, 615-616). 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 (CCA, 11 November 1993, unreported) at 4)." 14 Recently, in R v Gilham [2007] NSWSC 231 Howie J rejected an application for a stay of proceedings concerning an ex officio indictment presented against the accused charged with the murder of his parents some thirteen years earlier. His Honour remarked in that case (at [79]) that his attention was drawn to no case of a stay having been granted in this State on the basis of lost evidence. 15 There have been many prosecutions for sexual offences where the prosecution has been permitted to proceed to trial on complaints as to offences allegedly committed a long time before. R v RWO [2002] NSWCCA 133 is an example of this category of prosecution. The trial judge refused to stay proceedings concerning offences allegedly committed as long ago as 1965. It was some thirty-one to thirty-three years later that complaints were made to the police. An appeal against the refusal to stay proceedings was dismissed. In R v Birdsall (unreported, NSWCCA, 3 March 1997) sexual offences committed between 1961 and 1967 first became the subject of complaint to the police in mid 1995. An order made at first instance permanently staying proceedings was quashed by the Court of Criminal Appeal. 16 Of course, each case has to be considered weighing its own particular circumstances but what the cases consistently make clear is that the power to stay proceedings is a power to be exercised only in most exceptional circumstances. Gaudron J, in her judgment in Jago, identified the principle underlying the caution to be exercised before granting a stay (at 76): "The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393, at p 399; 72 ALR 1, at p 12, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals'. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson [1987] 20 Leg Rep SL 1, 'sparingly, and with the utmost caution'. See, generally, Cocker v Tempest (1841) 7 M & W 502 [151 ER 864]; Lawrance v Norreys (1890) 15 App Cas, at p 219; Humphrys [1977] AC, at p 26; and Reg v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164, at p 168." 17 It is for the accused to establish that the relief sought should be granted and I am not persuaded by Mr Austin's submissions that this is an extreme case calling for a permanent stay of proceedings. I call to mind what Mason CJ said as to the test of fairness in Jago in the passage cited earlier (at [10]), considering also the community's right to expect that a person charged with a serious criminal offence should be brought to trial, together with all the principles relevant to the present application. It seems to me that a fair trial can be held even allowing for the loss of evidence addressed in the affidavit of Ms Ceic. 18 There is nothing to prevent the accused from giving evidence as to where he was at the time it is alleged he committed the crime. Evidence can be introduced also as to unsuccessful measures taken to corroborate that account. The jury can be, and should be, instructed in appropriate terms as to the impact of the lapse of time upon the measures available to the accused to present his defence. 19 Whilst the accused may be disadvantaged by losing evidence that may have been available to him in earlier years, it is not to be overlooked that the Crown may well be disadvantaged also by no longer being able to test any alibi evidence presented as effectively as it may have been able to test any such evidence in earlier years. 20 Having taken time to reflect on the competing submissions in this matter, I have concluded that the application for a permanent stay of proceedings should be refused, and the trial will therefore proceed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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