Supreme Court New South Wales Medium Neutral Citation: R v Smith [No 1] [2011] NSWSC 725 Hearing dates: 9/05/2011 - 10/05/02011, 16/05/2011 - 19/05/2011, 23/05/2011 - 24/05/2011 Decision date: 26 May 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: Application for a permanent stay is refused. Catchwords: Criminal Law - murder - permanent stay - "cold case" - loss of exhibits - assertion that police investigation inadequate and tardy Cases Cited: Aydin v R [2010] VSCA 190 DA v The Queen [2000] ACTSC 58 Dupas v The Queen (2010) 241 CLR 237 Gilham v The Queen (2007) 73 NSWLR 308 Jago v District Court (NSW) (1989) 168 CLR 23 Penney v R (1998) 155 ALR 605 PG v R [2010] VSCA 289 PNJ v R (2009) 252 ALR 612 R v Carver [1999] NSWCCA 135 R v Davis (1995) 57 FCR 512 R v Edwards (2009) 83 ALJR 717 R v Fleming [2007] NSWSC 337 R v Hatfield [1999] NSWCCA 340 R v Helmling (NSWCCA, unreported, 11 November 1993) R v Ngo (2003) 57 NSWLR 55 R v Tolmie (unreported, NSWCCA, 7 December 1994) R v Ulman-Naruniec (2003) 143 A Crim R 531 Regina v Littler [2001] NSWCCA 173 Subramaniam v R (2004) 211 ALR 1 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Category: Interlocutory applications Parties: Regina Darren Paul Smith (Applicant) Representation: Counsel: C Everson D Yehia SC Solicitors: S Kavanagh (Solicitor) Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Applicant) File Number(s): 2009/50517 Judgment Introduction 1The applicant, Darren Paul Smith, is charged with having murdered Russell Lyons at Fairfield on 3 June 1995. On 26 May 2011 I refused the applicant's notice of motion seeking a permanent stay of the proceedings. What follows were my reasons for doing so. 2A considerable body of material has been tendered on the application. The applicant relies upon two affidavits of his instructing solicitor, Melissa Chu, sworn 27 April and 6 May 2011 respectively. Annexed to those affidavits are a number of documents which concern the investigation and prosecution of this matter. They include witness statements, transcripts of evidence given at the committal hearing, and other material such as police running sheets, COPS entries and information reports. In response, the Crown provided material in the form of further witness statements and newspaper clippings. The hearing has proceeded in a somewhat piecemeal fashion. That was largely because it was necessary for a good deal of additional evidence to be adduced by the parties so that matters, which had been raised for the first time in written submissions filed on behalf of the Crown, could be addressed. Subsequently, in response to a further matter raised by the Crown, leave was granted to the applicant to cross-examine two witnesses on a Basha enquiry. In the final analysis, oral evidence was given by Detective Senior Constable David Willey, who has been the officer in charge of the investigation since July 2008, by Senior Constable Geoffrey Connelly and by two civilian witnesses, Brett Kennedy and Paul Johnson. 3Put shortly, the application is brought upon the basis that the applicant has been deprived of the opportunity of having a fair trial because of what is said to have been an inadequate police investigation, which included the failure to promptly investigate information that two persons had separately claimed responsibility for killing the deceased, together with the loss or destruction of physical exhibits and other documents. In written submissions the issue was described in the following terms: A combination of the lapse of time, loss of information/evidence and an absence of due diligence in the police investigation of this matter create such prejudice as to render any trial of the accused an abuse of process". The Crown case 4I was provided by the Crown with a document entitled "Short Summary of the Crown Case" which is in the following terms: The Crown puts its case against the accused (in the usual way) by firstly asserting that the accused deliberately caused the death of the deceased; with the intention of inflicting grievous bodily harm upon him; and not by way of acting in self-defence. In the alternative the Crown puts its case against the accused by way of the application of the constructive murder rule. The Crown says that the accused committed the crime of aggravated steal from the person with the infliction of grievous bodily harm, contrary to s.96 of the Crimes Act 1900 (maximum penalty upon conviction is 25 years imprisonment). The particulars of which are that the accused: + stole the wallet, keys and shoes of Russell Lyons, from the person of Russell Lyons, + and immediately before or after, or at the time of the theft he used corporal violence on Russell Lyons + and thereby inflicted grievous bodily harm on Russell Lyons. The Crown alleges that at about 3.30am on 3 June 1995, Darren Paul Smith (the accused) was involved in an altercation with Russell Lyons (the deceased) on The Crescent at Fairfield. The Crown alleges that the accused attempted to steal the wallet of Russell Lyons. Almost immediately thereafter three unidentified Pacific Islander men and two male friends of the deceased became involved. The accused was kicked and the deceased was punched by one of the Pacific Islanders. The Crown alleges that the deceased run [sic] from the scene along The Crescent and around the corner into Smart Street and then into a car park located at the end of the laneway that intersected with Smart Street. The Crown alleges that the accused chased the deceased, caught up with him in the car park and assaulted him knocking him to the ground. Due to his level of intoxication, the deceased was unable to escape the area and the accused beat him causing his head to strike the ground. The Crown also alleges the accused kicked the head of the deceased, whilst the deceased was lying face down on the ground. The accused inflicted the head injury that caused the death of Russell Lyons. The Crown alleges the accused removed deceased's wallet from the rear right pocket of his jeans and also removed the deceased's size 10 white Asics joggers and placed them on his own feet after removing his size 9 Adidas joggers. The accused threw his Adidas shoes on a nearby awning. The Crown asserts those shoes were worn by the accused [sic] have contacted with blood from the injuries inflicted upon the deceased. Those Adidas shoes were seized by police. Blood stains were detected on the external surface of the heel of the right shoe and on the side of the sole of the left shoe. The DNA profile recovered from these blood stains is consistent with the DNA profile of the deceased. An unidentified male DNA profile was obtained from the inside of the tongue of the left shoe. Further analysis in 2009 of these Adidas shoes detected the same DNA profile from the inside heel area of the right and left shoes. DNA was also recovered from one inner sole and the shoe laces. This DNA showed a mixture of DNA types originating from at least 3 unidentified individuals. The same unidentified male DNA profile (obtained from the inside the shoes) was obtained from an examination of a stain above the right back pocket of the deceased's jeans, the pocket in which the deceased kept his wallet. For over a decade police inquiries into the murder of Russell Lyons were unsuccessful. On 28 July 2007 the accused provided a DNA sample following his arrest in Queensland. On 23 September 2008 the previously unidentified male DNA profile located on the inside of the left Adidas shoe was matched on the National Criminal Identification DNA Database (NCIDD) with the DNA profile of accused. The accused was arrested and charged on 7 June 2009. The Crown also relies upon the evidence of a forensic podiatrist (Dr Paul Bennett) who compared the wear patterns on the Adidas shoes referred to above with the accused's workboots and thongs taken by police after his arrest. The Crown asserts that the wear patterns on the accused's workboots and thongs correspond to wear patterns on the Adidas shoes. [I interpolate that it has been foreshadowed that the admissibility of that evidence will be challenged in the event that the present application fails]. The Crown also relies on: (1) evidence of the similarity between the appearance of the accused in 1995 with the description of the man who attempted to steal the deceased's wallet and who pursued the deceased into Smart Street; (2) evidence that the accused lived and worked in the Fairfield area in June 1995. 5Counsel who appeared for the applicant, Ms Yehia SC, in written submissions, produced a rather more comprehensive summary of the available material in order to place the application into some sort of context. That summary is reproduced below: The deceased's body was found on the morning of 3 June 1995 in a car park area at the end of a laneway running off Smart Street Fairfield. He did not have his shoes on. The pathologist's report states that the direct cause of death was head injury with alcohol toxicity being a contributing factor. The deceased had been out the night before with a group of friends. At about 3 am on 3 June 1995, the deceased was in the company of John Byrne and Ian Cross. They were on The Crescent, Fairfield. Ian Cross and John Byrne made a number of statements to police setting out their accounts of what had occurred in the early hours of 3 June 1995. Both witnesses also gave evidence at the Inquest in 2000 and at committal proceedings in 2010. Essentially, these two witnesses give an account of seeing a Caucasian male and the deceased in what appeared to be a confrontation. They heard the deceased call out words to the effect that the Caucasian male had the deceased's wallet or was trying to steal his wallet. Byrne and Cross ran towards the Caucasian male and the deceased. Cross struck the Caucasian male causing him to the fall to the ground. The witnesses gave a general description of the Caucasian male. The male was observed to have a 'goatee' beard. The Crown case is that this male is the accused. At about the time this initial confrontation was taking place, the witnesses observed three males described as 'Islander males' approach from the direction of Hamilton Street. These three Islanders asked what was going on. One of the Islanders struck the deceased and then struck the Caucasian male. According to Byrne the deceased then ran down the Crescent and around the corner into Smart Street. He saw the Caucasian male also run around the corner into Smart Street but is unsure as to whether he did so before or after the deceased. That was the last that Byrne saw of the deceased. [I should indicate that in his statement to police Mr Byrne said that when he saw the deceased starting to run (that is around the corner) he saw the other man "run after" him. However, his evidence in that respect must be regarded as equivocal, given the versions he gave on subsequent occasions]. Cross observed one of the three islanders assault the deceased and the Caucasian male. Once struck the Caucasian male disappeared. Cross observed one of the Islander males assault the deceased on a second occasion at the corner of The Crescent and Smart Street. He observed the Islander to be 'belting into' the deceased. Both Cross and Byrne were approached by the Islanders again. Byrne was assaulted and they then managed to walk away from the Islander males. The Islander observed to assault the deceased was described as having braided hair (possibly in a pony tail). On the 5 June 1995 a pair of Adidas joggers were found on an awning at 113 The Crescent. Between 1995 and 2008 the Adidas shoes were subject to numerous forensic tests including multiple DNA tests. In total 5 separate DNA profiles were located on the shoes. One of the profiles matching the deceased's DNA profile was located in bloodstains on the shoes. The unidentified DNA profiles found elsewhere on the shoes were entered into the DNA database. On 23 September 2008 one of the DNA profiles found on the inside tongue of the left shoe was linked on the National database with the profile of the accused. Following his arrest, a reference buccal sample was taken from the accused and further DNA testing was conducted on the shoes and on the jeans worn by the deceased. A DNA profile found on the upper inside heel of both shoes was matched to the DNA profile of the accused. A DNA profile taken from a stain above the right back pocket of the deceased's jeans matched the DNA profile of the accused. The accused has been excluded as a contributor to three DNA profiles found elsewhere on the Adidas shoes (inside toe area of right shoe, inner sole and shoelaces). The Crown relies upon the DNA evidence in presenting a circumstantial case alleging that it was this accused who robbed the deceased, causing him fatal injuries with an intent to kill or cause grievous bodily harm, or, alternatively relying on constructive murder. Central to the Crown case is the evidence of the Adidas shoes and the link the Crown makes between the wearer of those shoes and the commission of the offence. The police investigation into this matter, before September 2008, focused on a number of suspects who either fit the description of the Islander men or were associates of Islander men known to police in the Fairfield area in 1995. Yakup 'Cookie" Tomruk, his brother Michael, and associates Beaven, Walsh and Hakalo were all nominated as suspects in 1995. Police received information nominating Yakup Tomruk as early as 6pm on 5 June 1995. On 22 September 1999 John Brown aka Jose Bachar was interviewed by police in relation to a number of suspects including Jack and Michael Rai. The witness described an islander male that used to associate with the Rai brothers in 1995 as having a Samoan, big build with 'a long pony tail...I think braided'. He told police that on the evening of the 3 June 1995 he was outside an establishment called Smarties with a group of islanders. He saw the male he described as the Samoan with the ponytail wearing a pair of shoes that he thought were Nikes. This male was talking about the deceased and saying that the shoes belonged to the deceased. At the committal hearing the witness claimed that he did not know Jack and Michael Rai. Furthermore he said that someone had offered him money to give his earlier account to police. However, his account to police in 1999 included a description of the Islander as having a ponytail, possibly braided. This detail was not part of any description that was made public in newspaper articles or television programmes about the death. Among the suspects were a group of associates: Yakup Tomruk, his brother Michael Tomruk, Paul Beaven, David Hakalo and Keith Walsh. Yakup Tomruk was interviewed by police on 6 June 1995 and 15 October 1999. Paul Beaven was interviewed by police on 15 April 1998 and 27 August 2001. David Hakalo was interviewed on 15 April 1998, 23 September 1999 and 14 August 2001. Keith Walsh was interviewed on 7 April 1998, 18 August 1999, 23 September 1999 and 7 September 2001. Each of the suspects denied involvement in the offence. The relevant legal principles 6It is convenient to make reference to the general principles which are to be applied when a court is requested to grant a permanent stay. 7In Jago v District Court (NSW) (1989) 168 CLR 23, Mason CJ said: 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 , per Wilson J.[at 34] 8Brennan J said: The power which was acknowledged to exist in Barton is a power which has a dual purpose: "to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice". One purpose of the power is to ensure a fair trial, the other to prevent an abuse of process. A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party. ... Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. ... By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. [at 46-47, 49] 9In Williams v Spautz (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ in a joint judgment, said: It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. ... The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair". This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose. However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought. If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution . It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. In the United States, great weight has been given to these factors. These factors have considerable force. There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances. ... It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is "a heavy one "... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances . [at pp 518-19, 529] [footnotes omitted] [emphasis added] 10In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ in a joint judgment said: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. ... In Jago v. District Court of New South Wales , at least three of the five members of the Court clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process". Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour : "public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." ... As was pointed out in Jago , the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice . [at pp 392-6] [footnotes omitted] [emphasis added] 11In Subramaniam v R (2004) 211 ALR 1, the High Court said: In Jago v District Court (NSW) Brennan J cautioned against too ready a disposition to grant stays : "The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence . The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind." It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. ... Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment" [at paras 25-27] [footnotes omitted] [emphasis added] 12In PNJ v R (2009) 252 ALR 612, the High Court said: It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute. [at para 3] 13In Dupas v The Queen (2010) 241 CLR 237 the High Court said: In Glennon , in describing cases in which a permanent stay will be ordered as extreme, Mason CJ and Toohey J refer back to a passage in Jago v District Court (NSW) ) containing a reference to R v McLoughlin; Ex parte Director of Prosecutions . There, the Full Court of the Supreme Court of Queensland recognized that for a court to grant a permanent stay of criminal proceedings is a rare occurrence, a drastic remedy to be applied in exceptional cases which might arise if there had been some conduct on the part of a prosecuting authority shown to result in prejudice to an accused in obtaining a fair trial. ... Characterising a case as extreme or singular is to recognize the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon , the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trail can relieve against its unfair consequences." ... A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the "social imperative" as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed . [at paras 33, 35, 37] [emphasis added] 14Given the issues which have been raised in the present case, it will be necessary to refer to some other authorities which assume particular significance. In R v Helmling (NSWCCA, unreported, 11 November 1993) the applicant was charged with three offences of culpable driving after the horse float which he was driving allegedly crossed onto the incorrect side of the road and collided with a truck coming in the opposite direction. As a result of the collision, the driver of the truck died and a passenger in each of the vehicles was occasioned grievous bodily harm. Hunt CJ at CL, with whom the other members of the Court agreed, addressed the basis upon which an application for permanent stay was advanced in the following terms: There was also evidence before the judge that, in the clothing of the deceased driver of the truck, there was found a disposable syringe and two small bags containing while powder or traces thereof which on analysis contained the drug methylamphetamine and, in the cabin of the truck, there was found a capsule which on analysis contained the drug phenamine. A sample was taken of the deceased's blood, but it was lost before it could be analysed, as a result of a system for which the prosecution must accept the blame. The syringe was never examined. The post mortem examination did, however, disclose that the deceased was suffering from both Hepatitis B and Hepatitis C which, it was asserted, are often occasioned by intravenous drug use. There is nothing before us as to whether the deceased was found on post mortem to have track marks on his arms. The applicant sought the stay of proceedings in the District Court upon the basis that the loss of this blood sample denied to him proof of a fundamental issue which he wished to establish, that the deceased was affected by the ingestion of drugs at the time of the collision, thus giving rise to the inference, it was submitted, that the truck driven by the deceased was the vehicle on its incorrect side at the time of the collision. The submission was that such loss amounted to 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. [at pp 3-4] 15His Honour said that he "[did] not accept that the case is of such an extreme nature as to warrant the grant of a stay" (at p8). His Honour's reasons for arriving at that conclusion appear in the following passages: That leads me to the consequences to the applicant of the loss by the prosecution of the deceased's blood sample . Clearly, if the applicant had available to him an analysis of that blood, he may have been somewhat further forward in raising this issue on the evidence for the Crown to eliminate. Whether or not he would have been further forward depends upon two further issues. The first is whether an analysis could have demonstrated that the deceased had in fact injected such an overdose of those drugs as to lead to the inference that there is a reasonable possibility that the deceased was so affected by that injection as to have allowed his truck to move onto his incorrect side of the road. ... The second issue, however, is whether such an analysis would have established that the deceased had in fact injected a sufficient dosage of the drugs as to give rise to such an inference. In my opinion, that too is sheer speculation. It is not like the case where, after a delay for which the prosecution was responsible, an accused can claim injustice from the death of a witness where that witness had made a statement of the evidence which he or she could give. We simply do not know what this blood would have shown, and there is such just as much chance that it would have shown nothing at all as the contrary. On the other hand, upon the assumption that the applicant is able to produce the further evidence to which I earlier referred, the applicant will have the advantage, without the blood, of being able to say to the jury at least that it may have established sufficient injection of the drugs to lead to the relevant inference. Whether or not that evidence is available has simply not been investigated. What the applicant has lost therefore is the chance that he may have been able to do better; he has not lost the certainty that he would have done better. He had been permanently deprived of an opportunity simply to explore an avenue of inquiry which might have led to his acquittal. That may in some cases be sufficient, but they would in my view be rare. They would not usually produce the extreme situation which the authorities require . ...[at pp 7-8] [emphasis added] 16In R v Tolmie (unreported, NSWCCA, 7 December 1994) Hunt CJ at CL, with whom the other members of the court agreed, in allowing a Crown appeal against a decision to grant a permanent stay, observed: There are many cases in which this Court has held that a permanent stay should not be granted simply because witnesses are unavailable or lost: Regina v George Adler (CCA, 11 June 1992, unreported) at 2-4; Regina v Anthony Richard Goldburg (CCA, 23 February 1993) at 4-6; Regina v Laurie Peter Hemling (at 4-8); Regina v David Anthony McCarthy (CCA, 12 August 1994, unreported) at 11-13. It is unnecessary to discuss them all yet again. In those cases, it was known what evidence could be given by the missing witness, and that the accused suffered some prejudice as a result of its loss. In the present case, there is nothing known of what evidence - if any - these two witnesses could have given. It is entirely speculative that they could give any evidence at all which was relevant to the issue of identification, let alone that the respondent will suffer some prejudice as a result of its loss. [at 5] To similar effect see R v Carver [1999] NSWCCA 135. 17In R v Hatfield [1999] NSWCCA 340 the accused was charged in 1997 with having murdered her husband in 1985. The evidence revealed that a number of items had been lost by police. They included the clothing worn by both the accused and the deceased, as well as other items which appear to have been associated with the deceased, the firearm which may have been used to kill the deceased, and notes of counselling sessions conducted with an essential Crown witness to whom the accused is alleged to have made admissions. Hulme J, with whom the other members of the court agreed, said: 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)." ... 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 T 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. ... 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. ... 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. [at paras 17, 38, 42 - 43] [emphasis added] 18In R v Ngo (2003) 57 NSWLR 55, albeit in a different context, the Court said: In Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84, the appeal concerned the anonymity of undercover police operatives. The court held that a balancing exercise must be undertaken between aspects of the public interest, including the entitlement of an accused to a fair trial. Brooking J observed however that a fair trial did not mean a perfect trial, "free from possible detriment or disadvantage of any kind or degree to the accused"; see also Jago v District Court (NSW) (1989) 168 CLR 23, R v Glennon (1992) 173 CLR 592 and Dietrich v The Queen (1992) 177 CLR 292. [at paras 98-9] 19In R v Ulman-Naruniec (2003) 143 A Crim R 531, a stay was sought on the basis that there had been both "an inexcusable failure" on the part of the prosecution to provide the applicant with "material fundamental to her defence of the charge", and because there was evidence that was "no longer available". Bleby J, with whom Besanko J agreed (Sulan J dissenting) said: I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued. ... Defective as the handling of the police investigation may have been in this case, I do not consider that the complaint of lack of access to the material in question would justify the extreme step of a permanent stay. The accused can put it no higher than that there is just a possibility that some of the lost material may be of some assistance . ... In my opinion, on the evidence in this case and on the findings of the trial Judge, it was not "on the cards" that the missing material would be likely to assist the defence. The evidence did not go as far as that. Any deficiencies in the investigation which might raise a doubt on the prosecution case will no doubt be exploited before the jury and, if appropriate, may be the subject of comment by the Judge . I do not consider that the lack of access to this material either alone or taken in combination with the matters which follow, would justify a permanent stay on the ground of abuse of process in accordance with the principles explained in Jago . [at paras 37, 39, 42] [emphasis added] 20In R v Fleming [2007] NSWSC 337, the applicant was charged in January 2005 for a murder which he was alleged to have committed in February 1984. The applicant submitted that he was prejudiced by the extreme delay and, in particular, because he was unable to obtain witnesses and/or records to support his alibi. Studdert J, in refusing the application, observed: 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." 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. ... 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 . [at paras 12-14] [emphasis added] 21In Gilham v The Queen (2007) 73 NSWLR 308, Spigelman CJ, with whom the other members of the court agreed on this point, said: This ground of appeal is expressed in the following way: "His Honour erred in finding that appropriate warnings or directions, rulings on admissibility, or other orders would cure any prejudice suffered by the accused, as a result of delay and/or the loss of evidence." The prosecution case against the applicant is entirely circumstantial. ... His Honour also set out the evidence that had been lost. That evidence was substantial including the knife used in the killings, the bloodstained coat of the deceased's brother, the clothing allegedly worn by the Applicant at the time of the killings, carpet samples from the living room, samples of textile removed from the deceased brother's coat for forensic testing and swabs that were forwarded for analysis and certain other items. Many of these items were not tested, not least because of the fact that DNA testing was not then as well established as it is now. His Honour outlined this evidence (at [76]-[78]); again it is not necessary to set it out. With respect to the lost evidence, his Honour said: "[84] As I have already noted, the intended prosecution of the accused is a circumstantial case and the Crown is not relying upon the reliability of any particular witness to prove the charges against the accused beyond reasonable doubt. Rather the prosecution would be attempting to prove that the account of the accused given at the time of the killings, or very shortly thereafter, could not possibly be true. To this extent the loss of evidence seems to me to have less impact that it might have. True it is that the defence might have used an exhibit now missing or tests carried out on those exhibits to bolster an inference that the accused's account is true. But the Crown could not rely upon the absence of those exhibits or the lack of testing to support an inference that the accused account was false. This is where I believe that directions or warnings to a jury might be more effective than would be the case where, for example, a complainant in a sexual assault prosecution is an apparently credible and compelling witness. In such a case the jury might more easily be able to dismiss the significance of the lack of evidence in the face of a witness that they feel should be believed. [85] The accused complains that the Crown will rely upon evidence of experts who might, because of their expertise, be considered favourably by the jury and yet the accused will not be able to cross-examine them effectively because the exhibits upon which they will express opinions have been lost. The accused is not now in a position to have the exhibits tested by his own experts. But I am not satisfied that this is a matter that cannot be addressed by suitable directions emphasising the lost opportunity of the accused to test the evidence. In any event it appears to me that what the accused has lost is a chance that he might have been able to present evidence that would weigh against the Crown case that his version of the events was false. He has lost an avenue of inquiry, or avenues of inquiry, that may have had a beneficial impact upon his defence: R v Helmling (NSWCCA, unreported, 11 November 1993). That is a matter that appears to me to be appropriately dealt with by directions from the trial judge. [86] In R v Slattery [2002] NSWCCA 367 the rifle used in the commission of a shooting offence had been destroyed before defence experts could examine it. The Court of Criminal Appeal set aside the verdict because of a failure of the trial judge to give an adequate warning to the jury, drawing their attention to the possible prejudice to the accused by the inability of the defence to examine the weapon. But there is nothing in the judgment to suggest that, had such a warning been given, the trial would necessarily have been unfair such that the verdict would have been quashed. [87] What this decision highlights is the benefit of being able to see with clarity the prejudice to the accused having regard to the evidence actually given at the trial and how, if possible, that might be addressed in light of submissions made to the jury. Otherwise the court in deciding whether there would be such unfairness as to render a trial an abuse of process is left to speculate about the evidence to be led at the trial and to make decisions based upon assertions that might not prove accurate when the issues in the trial are clearly established. This emphasises in my mind the exceptional step of granting a stay on the basis of lost evidence." His Honour's ultimate conclusion in this respect was as follows: "[93] To some extent the accused is in a better position than many accused who face trial after long delay or where evidence has become unavailable. His version of events has been preserved and is accessible in a recorded interview. As I have indicated, the Crown will have to prove beyond reasonable doubt that the version he gave shortly after the incident is not true. To that extent the accused is less prejudiced by the passage of time even if he has tried to put the events of the night from his memory. [94] Further, it should be borne in mind that the result of a refusal to grant a stay does not mean that the accused is without a remedy, if the trial proves to be unfair notwithstanding steps taken by the trial judge to remove that unfairness. It is not unknown for a trial judge to make a decision based upon a forecast of what might occur during a trial or based upon facts and circumstances as they appear to be at the time the decision is made and yet that forecast prove to have been based upon a false assumption or that the facts or circumstances change significantly during the course of the trial. The trial judge can revisit decisions, such as the refusal to order a separate trial, on the basis of what occurs through the trial. The Court of Criminal Appeal can review such a decision made at he start of the trial if it proves that a miscarriage of justice has ultimately eventuated. This is what occurred in one of the authorities relied upon by the accused, R v Garjee an unreported decision of the English Court of Appeal dated 20 September 1994. [95] In the present case I suggested that the prosecutor might indicate what submissions the Crown might make to the jury at any trial in light of the missing exhibits so that a more realistic appraisal might be made of the claim of prejudice by the accused. Ultimately that did not transpire. But it seems to me at this stage that the trial judge can deal with the issue of lost evidence by warnings or directions depending upon how the case develops before the jury and what submissions the Crown ultimately makes. Certainly I am not presently persuaded that the trial judge, by appropriate warnings or directions, rulings on admissibility or other orders, cannot cure any prejudice suffered by the accused, particularly having regard to the fact that it is a circumstantial case and that the Crown must prove that the accused's version cannot reasonably be true." In my opinion, his Honour was correct to conclude that, with appropriate directions, the Applicant would receive a fair trial and that it was inappropriate for the Court to intervene at this stage. I specifically agree with Howie J, with respect to the lost evidence, that it is appropriate to adopt the approach of this Court in R v Helmling (NSWCCA unreported 11 November 1993) . As noted, Howie J concluded that the matters relied upon are capable of being revisited during the course of the trial in order to identify what if any prejudice emerges. I agree . Should there be a trial resulting in conviction, no doubt the actual course of the events together with the actual directions given by the trial judge can be the basis of grounds of appeal with full knowledge of the relevant facts. His Honour was correct, for the reasons he gave, to conclude, in effect, that the application was premature . ... There is a substantial public interest in permitting alleged crimes of such seriousness to be determined on their merits. The expectation, said to be legitimate, induced in the mind of the Applicant by the Crown's delay and prevarication, is not entitled to significant weight in the case of alleged murder . In my opinion, Howie J correctly found that the events said to result in oppression do not prevail over that public interest, for the reasons he gave. (C/f Filipowski supra at [32].) [paras 116 - 117, 119 -123, 130] [emphasis added] 22In Penney v R (1998) 155 ALR 605, it was contended that an unfair and incompetent police investigation had rendered the verdict unsafe and unsatisfactory. Callinan J, with whom the remainder of the Court agreed, said: It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial. There is no doubt that the police investigation was unsatisfactory in some respects. However these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant's counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge . The appellant's submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial . That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case. [paras 16-18] [emphasis added] 23In R v Edwards (2009) 83 ALJR 717 the High Court observed: The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay. They seek to distinguish their case on the basis that the loss here is of the independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event. The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair . [at paras 30-31] [footnotes omitted] 24In Aydin v R [2010] VSCA 190 the Victorian Court of Appeal considered a case in which the relevant incident, which involved a woman being dragged from her car at knifepoint, had occurred in 1982. It was not until 2007 that a suspect was identified when a fingerprint match was made. By then, in accordance with the normal police practice of destroying files after 20 years, most of the file had been destroyed. Harper JA, with whom the other members of the court agreed, said: What is important in a case such as the present, therefore, is not the document management policy as such, but the effect that the unavailability of the police file has on the fairness of the trial. And here, as was said by the High Court in R v Edwards , quoting from the judgment of the same Court in Walton v Gardiner, the test is: ... 'whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness', or whether the 'continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process'. In Edwards the Court thus stressed that it is not sufficient that the loss of relevant material could or might result in injustice or unacceptable lack of fairness; it must be shown that that would be the result. And the Court further stated that a permanent stay must not be granted unless the court before which the application is made is 'satisfied that the continuation of the proceedings constituted an abuse in an exceptional or extreme case. The applicant sought to meet this test by submitting that he has lost the opportunity, which may otherwise have been open to him, to obtain alibi evidence, or other evidence which might sustain an hypothesis sufficient - at the least - to prevent the prosecution proving its case to the requisite standard. Time will have worked its power to subtract, to add and to distort - in short, to diminish the ability of a jury to reach a true verdict. Likewise (the applicant's submission continued) he has been deprived of the opportunity to expose gaps or other difficulties in the prosecution case which might be discerned on a proper analysis of the materials in the now unavailable police file, or which might have become apparent on questioning the original police investigators. Both of these officers have since retired, and have no notes and no independent memory of their investigation. In addition, the police have lost another photograph of another fingerprint found on the inside of the same car window on 26 September 1982. At the committal hearing, Sergeant Brian Ritchie, the fingerprint expert who took the original photographs, told the Court that this second photograph 'was possibly someone else'; but, if it was, that other person has never been identified. At the committal, Mr Ritchie also referred to another 'probable' suspect - a man named Jose Manuel Alonso. On a voir dire before her Honour, however, the informant (Detective Senior Constable Costakis Costa) said that he had made further inquiries about this person, without result; and Mr Costa added that he did not know whether Mr Alonso 'was ever considered a person of interest." Both before her Honour, and on this application, it was submitted on behalf of the applicant that in her original statement, now lost, the complainant probably gave more details about her assailant than appear in the statement made after the applicant became a suspect. If those additional details were now available, the applicant might be able to point to discrepancies between them and his own appearance. It is already apparent that photographs said to have been taken of the applicant at about the time of the offence show a man without a paunch; whereas the complainant now says that her attacker had a pot belly. It was submitted on this application, but not in the court below, that a like argument could be made about the vehicle in which the complainant's assailant was travelling. She may have given a description of it in her first statement; and even if that description were not sufficient to enable the police to identify that vehicle as being associated with the applicant, it may have been detailed enough to enable the applicant to deny any connection with it. It is appropriate, it seems to me, to test the applicant's submissions by asking what the realities are likely to be should the trial proceed. As was said by the authors of Abuse of Process in Criminal Proceedings Unsurprisingly, ... courts ... have been concerned to ensure that unscrupulous and opportunistic defendants are prevented from either successfully making false claims concerning the purported prejudice suffered because of the loss by the prosecution or constructing false defences ex post facto based on knowledge of the unfortunate loss. This attitude of scepticism towards defence complaints of prejudice in these circumstances is consistent with that concerning defence complaints arising out of prosecutorial delay. In ... R v Cardiff Magistrates' Court, ex p Hole ... Bingham CJ insisted that the defence, in arguing abuse, would have to establish precisely how in relation to the defence(s) to be advanced at trial prejudice was suffered, '... it is necessary to look at the charges and see exactly what defence it is that they are impeded from advancing'. ... It may be that during the course of the trial material does come to light which alters the perspective which at present seems to me to be compelling. In the meantime I must, I think, conclude that this case does not fall into that exceptional class in respect of which an application for a permanent stay will succeed. But, as was said by Ashley JA in Wells v R : ... it might appear, as the trial proceeds, that the circumstances are otherwise than I presently apprehend them. If that turned out to be the case, the applicant would not be precluded from making a further application for a stay . [paras 17-22, 28] [emphasis added] 25In PG v R [2010] VSCA 289, the applicant was charged with various sexual assaults upon his daughters. The applicant's initial record of interview with police was missing. Furthermore, police did not interview him in relation to later allegations which had been made against him. The Court of Appeal rejected an application for leave to appeal against the trial judge's decision to refuse to order a permanent stay. Neave JA, with whom the other members of the court agreed, placed reliance upon what the High Court said in Edwards about the significance of missing evidence. Her Honour said: "Moreover case law indicates that even where missing evidence is directly related to the alleged offences, it will rarely provide the basis for the conclusion that the prosecution amounts to an abuse of process". ... "Any disadvantage which may be suffered by the applicant must be weighed against the interests of the community in ensuring the prosecution of persons alleged to have committed serious criminal offences." [at paras 20, 23] 26It will be necessary to refer in a little detail to one further case upon which counsel for the applicant relied. In written submission, counsel contended that "[t]he police have a duty to comprehensively investigate information and search out contemporaneous witnesses who might be able to shed light on the relevant circumstances: Regina v Littler [2001] NSWCCA 173 at [24] and [25]". Although that was a case in which the Court of Criminal Appeal determined that the trial judge had erred in refusing to grant a permanent stay, it is clearly a decision which very much turns on its own facts. The applicant was 74 years of age and in ill-health. There was evidence as to his psychological, psychiatric and other health issues. Moreover, there was expert evidence concerning his loss of memory. The allegations were of sexual assaults alleged to have occurred between 38 and 46 years before the trial. In order to provide some context for the proposition upon which the applicant relies, it is useful to set out precisely what Adams J, who wrote the leading judgment, said in the paragraphs which are relied upon. His Honour said: It was submitted that the great delay between the dates upon which it is alleged the offences (whatever they were) allegedly occurred and the applicant's trial has resulted in such prejudice that a fair trial cannot be conducted. This prejudice falls into three main classes. The first concerns the unavailability of numerous potential witnesses who are dead, demented or unable to be identified. Related to this issue, of course, is the undoubted fact that such of these witnesses who might have been able to give relevant evidence at one time might very well now not be able to do so for failure of recollection caused simply by the lapse of time and ordinary human fragility. A lengthy list of Marist Brothers who were on the staff of the Home at the relevant time together with the names of various other persons who worked there in various capacities, was supplied to Maguire DCJ. His Honour accepted that most of these potential witnesses were dead, mentally incapacitated or unable to be located. Of course, any properly conducted police investigation should have thrown up the names of possibly material witnesses and attempts should have been made to locate them in light of the possibility that relevant evidence material to the issues in the case might have been discovered. The mere fact, if it occurred, that this evidence might assist the defence of course, should have been irrelevant. The statements of both complainants in this case are noteworthy for the omission of any mention of staff members or friends with whom, it seems reasonable to suppose, they had communications of greater or lesser intimacy. So far as the Crown case is concerned, it is for all practical purposes entirely focused upon the evidence of the complainants, lacking any supporting evidence, let alone corroboration. In cases of this kind, where allegations are made and charges brought after such a lengthy delay, the investigating police have the duty, in my view, to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. It is not appropriate to leave this investigation to the defence or, of course, to the complainants. Although in a sense, therefore, it is for the applicant to establish such prejudice as would justify a stay of proceedings, this should be in the context of a full and adequate investigation by the prosecuting authorities which provides a context that enables the court to evaluate in a sensible way the extent of the prejudice affecting the accused. In light of the material tendered in the District Court in this case, it is impossible to avoid the conclusion either that little more has been done than the reduction of the complainants' allegations to a statement in the conventional form or that there are no witnesses now available and able to provide relevant and significant evidence. [at paras 24-25] 27For completeness, I should record that counsel for the applicant made cursory reference to two further decisions, namely R v Davis (1995) 57 FCR 512 and DA v The Queen [2000] ACTSC 58, in which a permanent stay had been granted. Each case involved allegations of sexual assault in which records had been destroyed or lost and again I am satisfied that they each turned on their own facts. Indeed, counsel did not suggest otherwise. The basis of the application 28Counsel for the applicant candidly acknowledged that no one factor standing alone could warrant the granting of a permanent stay. What was contended however was that a number of features of the case, when considered in combination, gave rise to what was described as "irreparable unfairness". It will be necessary to refer to each of the submissions which were advanced in support of the overall contention in turn. 29Before doing so, it will be necessary to say a little more about the factual background to the offence. Counsel for the applicant submitted that the description of events provided by the eye-witnesses, John Byrne and Ian Cross, indicated that a group of men described as "Islander males" had approached the altercation between the deceased and the Caucasian male with the goatee beard which took place on The Crescent. According to Ian Cross, one of those men, who had braided hair which was in a ponytail, assaulted the deceased on two occasions, the second occasion being on the corner of The Crescent and Smart Street. It appears that the deceased then ran into Smart Street. Although his body was found the following morning in the carpark area at the end of the laneway of Smart Street, there is no eyewitness account of what occurred in Smart Street, or in the laneway or in the carpark. Counsel for the applicant submitted that in those circumstances it was a reasonable possibility "that one of the Islanders was responsible for whatever altercation led to the injuries that resulted in the death of the deceased". In that context, emphasis was also placed upon the fact that Yakup Tomruk, Michael Tomruk, Keith Walsh, Paul Beavan and David Hakalo were all identified as suspects from an early point in the investigation. Counsel also pointed out that the applicant had been "excluded as a contributor to the DNA samples found on the shoelaces of the Adidas shoes, on the inner sole and the inside toe area of the right shoe". The consequence, so it was submitted, is that an unidentified person or persons must have been the contributor to those samples. (a) The failure of police to promptly investigate information received in 1999 that Claude Rinston had admitted killing the deceased 30A police running sheet, which was created on 21 July 1999 in relation to the investigation of the killing of the deceased, contains the following information: On the 20 th of July, 1999 a community source spoke to Detective Inspector Rees the Fairfield Crime Manager indicating that he had spoken to Ashur Darmo who told him that a person by the name of Claude Rinston had admitted being responsible for the death of the deceased. Rinston had also indicated that he is considering handing himself in to police. 31Counsel for the applicant pointed out that no attempt had been made to locate or even identify Claude Rinston until 2009. Moreover, Ashur Darmo was not spoken to until April this year even though police were aware of his address from at least 2001. When police eventually obtained a statement from him, he effectively claimed to know nothing about the matter. In his statement the following information appears: I can say that no one has ever spoken to me about committing a murder or a bad crime, or any other illegal activity to me. The first time that I was aware that my name had been mentioned in relation to the murder of Russell Lyons was when police came to my door on 13 May 2009. I don't know a person by the name of Claude Rinston or any person with a similar name. The surname Rinston is unusual, it doesn't ring a bell. I have no recollection of being involved in any conversation involving the name Claude Rinston. ... I can say for certain that I have never spoken to or told anybody that anyone has ever said anything to me about the murder of Russell Lyons. 32Counsel for the applicant submitted that the failure to investigate the information in 1999 has "deprived [the applicant] of the opportunity of assessing ... whether [the] information was credible". One avenue which it was suggested may have been explored was whether there was a connection between Ashur Darmo and Claude Rinston. (b) The failure by police to promptly investigate information received in 2005 that Michael Tomruk had admitted killing the deceased 33It was in respect of this issue that oral evidence was adduced from Senior Constable Connelly, as well as from Brett Kennedy and Paul Johnson. Senior Constable Connelly gave evidence that on 11 February 2005 he had created a running sheet after receiving a complaint from Paul Johnson that he had been assaulted and threatened by two men, Michael Tomruk and Joseph Kasuvomic. The evidence reveals that a dispute had arisen between them in relation to the supply of illicit drugs. The running sheet records that Paul Johnson alleged that Michael Tomruk had threatened to kill him. The following information then appears: Michael Tomrook [sic] has then said to the victim, "I've killed someone before. Your [sic] nothing to me. You'll feel the knife go into your throat and feel it go out." 34A little later the following information is recorded: Police also interviewed a further witness [who it can be inferred is Brett Kennedy] who has audio taping of the accused's voice, a Joseph Kasumovic where the accused is heard to say that the victim will be in a body bag as well as to say that the victim received a smacking and that he had a black eye. These conversation [sic] were then recorded as possible evidence by Police. ... On the 1 st of June, 2005 the victim was spoken too [sic] to update him as to the status of the said investigation. At this time, the victim stated that he no longer wishes to proceed with the complaint and desired no formal charges to be laid. The victim declined to make a retraction statement, stating that his word was good enough. 35A little later that same day, Senior Constable Connelly created a further running sheet after having been contacted by Brett Kennedy who also complained about having received a number of threatening phone calls from Joseph Kasuvomic. That running sheet records that "these telephone calls and verbal messages were all recorded on the victim's answering service. ... Police have obtained recordings of all [those] telephone calls and voice messages." Senior Constable Connelly said that he "had heard the messages from the phone." He also gave evidence that he believed that he had kept a copy of the recordings and that he had advised Mr Kennedy to do so as well. (Mr Kennedy in his evidence confirmed that he had done so but said that he had discarded the mobile phone upon which the messages were recorded some considerable time ago). 36On 1 March 2005 Senior Constable Connelly created an Information Report Summary. It contains the following information: On the 1 st of March, 2005 Fairfield Police were contacted by a community source [Brett Kennedy]. This community source is currently having numerous communication offences committed upon him which was currently under investigation. These telecommunications also stem from a recent assault upon a Mr Paul JOHNSON of Fairfield. On or about the 1 st of March, 2005 it is then alleged that the POI [Michael Tomruk] has contacted the community source by telephone were [sic] he has challenged the community source over his friendship with Paul JOHNSON. The POI during this conversation has threatened the community source and attempted to instil fear into him by saying something to the effect of "I've killed a man before and got away with it." The POI allegedly mentioned the mans [sic] name as being that of a Russell LYONS who lived in Fairfield. This detail was not prior knowledge to the community source. 37It appears that that conversation was not recorded. 38Paul Johnson provided a statement, dated 5 May 2011, in which he said that he did not know who had killed the deceased although "the general talk at The Crescent Hotel was that three Islanders were responsible. I don't know who these people are." In his evidence he said that he used to drink with Michael Tomruk at The Crescent Hotel in 1995. 39Brett Kennedy provided a statement dated 18 April 2011. It included the following information: I have a vague memory of ringing the police, it may have been Crime Stoppers, I'm not too sure, about hearing some information about Mick Tomruk and some of the Islander boys who he drank with at the pub, the Crescent, I think it is, the one on the corner near Fairfield Police Station. I heard that one of them was involved and they stole a pair of shoes from Russell; a pair of shoes that were thrown on the awning or something like that. I heard this information when I was down at the park in Fairfield in a drinking binge. The park was along railway parade there, near the carpark for the commuters. I was sitting in the park with Paul Johnson when it was said. I don't know who said, they weren't talking to me they were talking to Paul from memory. I don't remember who was saying it and I can't describe them, it is all very vague. It would have been late in the afternoon and I would have been intoxicated by that time. I was drinking 6 to 12 long necks of VB beer back then, they were blurry days. At the time I made the call to the police about this information there is a 90 per cent chance I was drinking as that was my life then. I think this was in about 2006 or 2007. ... I would drink with Paul everyday down at the park. People used to come down selling pills and their methadone. I was using marijuana and alcohol heavily. Paul and I used to take the micky out of the people selling pills and the methadone. ... Detective Willey asked me if I remember receiving any threatening phone calls back then. I remember getting calls from a bloke called Joe, he was selling heroin and marijuana and he had a heroin habit. I remember him calling me and him threatening me saying I would be next and Paul Johnson would be next and they would do the same to me as they did to Russell. I think I reported this to police. I can't remember which police I reported this too [sic]. I think I would have told police about the same time... I told them about Russell. 40In his evidence, Brett Kennedy said that he had gone to school with the deceased's older brother. He said that he had been living in Western Australia in 1995 when he was informed that the deceased had been killed. In his evidence, Brett Kennedy maintained that although Michael Tomruk had been pointed out to him, he had never actually spoken to him. He said that he had no memory of telling a police officer that Michael Tomruk had called him and said that he (Michael Tomruk) had killed the deceased. He said that that information had been conveyed to him by Joseph Kasumovic. 41The applicant observes that not only were no steps taken in 2005 to investigate the information which was provided by Brett Kennedy, but that Michael Tomruk was not interviewed until 19 May 2009. In his statement Michael Tomruk claimed that he had been in Queensland at around the time of the incident. The applicant submits, correctly, that there is no direct evidence available to establish that he was in fact in Queensland at the time when the deceased was killed. Indeed, Michael Tomruk concedes in his statement that he is unable to recall exactly where he was. When Paul Johnson was asked if he remembered anything about Michael Tomruk playing rugby league in Queensland in 1995, he replied: "No, I don't. If he went up to Queensland he wasn't there for long." 42The applicant also points to the fact that Detective Willey did not question Michael Tomruk about the admission which he is alleged to have made to Mr Kennedy. 43Complaint is also made about the fact that no statement was taken from Mr Kennedy until 18 April this year. It is further contended that although Mr Kennedy makes reference in his statement to having given the police information about the deceased, his account is vague. It was submitted that the passage of time had dimmed his memory. That problem, so it was contended, would not have arisen had a contemporaneous statement been taken from him. 44As I have said, Senior Constable Connelly gave evidence that police obtained recordings of the telephone calls and voice messages which had been left on Brett Kennedy's phone by Mr Kasumovic. However, the evidence reveals that this material is no longer available. As a consequence, it is submitted that "the applicant has been deprived of the opportunity to effectively cross-examine this witness and to put material before the jury supporting the credibility of Brett Kennedy. The prejudice afforded by the failure to properly investigate this information is compounded by the fact that the Crown is going to suggest that Kennedy is an unreliable witness." It is submitted that the telephone calls and messages could have bolstered the credibility of Brett Kennedy. The fact that they are no longer available means, so it was submitted, that the applicant is deprived of the advantage which that material would have provided to him. It is also submitted that "the evidence that Michael Tomruk admitted killing Lyons is particularly significant in the context of an investigation that had targeted the Tomruks and their associates from 1995". 45By way of conclusion it was submitted that "the police have failed to properly investigate two lines of inquiry relating to admissions by suspects to killing [the deceased]. The Applicant has been deprived not only of information to effectively cross-examine witnesses considered suspects in the initial police investigation but, importantly, has been deprived of the opportunity to place before the jury credible evidence that admissions to the killing were made by others." (c) The loss of a number of interviews conducted with suspects and other witnesses as well as the loss of photographic arrays shown to witnesses in the initial stages of the investigation 46It is common ground that a number of interviews, as well as various photographic arrays which were shown to eye-witnesses, have been lost. 47It is convenient to set out the persons in respect of whom interviews are missing: Name Date Status BEAVAN, Paul 15.4.98 Missing 27.8.01 3.6.95 24.7.98 BYRNE, John 24.9.99 Missing 14.9.01 8.3.09 CABALLERO, Victor 5.6.95 Missing 17.2.99 CABALLERO, Raquel 5.6.95 Missing 17.2.99 3.6.95 CROSS, Ian 24.7.98 Missing 24.9.99 15.3.09 10.8.95 15.4.98 Missing HAKALO, David 23.9.99 Missing 14.8.01 28.4.11 8.6.95 JONES, Alan 12.1.99 Missing 15.3.09 Approximately 2 weeks after the murder 7.4.98 WALSH, Keith 18.8.99 Missing 23.9.99 Missing 11.10.00 7.9.01 (d) The failure of police to promptly show eye-witnesses photographs of four potential suspects with goatee beards 48In a document created by Detective Senior Constable Leighton, dated 7 June 2000, it is stated that "the following 14 persons have been identified as suspects for the purpose of DNA testing in relation to the murder of Russell Lyons". I should indicate that it is not entirely clear upon what basis each of those persons were then thought to be suspects. In a review apparently completed in April 2005 the following entry appears: "Numerous POIs identified but unclear as to level of any suspicion attached to those persons, numerous suspects were interviewed by police". In any event, of the 14 persons on the list, the first 7 persons named are Yakup Tomruk, Keith Walsh, David Hakalo, Paul Beaven, Jack Rai, Michael Rai and Suipeli Fuahala. The following material then appears: Information was received that a male with a goatee beard being held in custody at the Wetherill Park police cells on the 3 rd of June, 1995, had been bragging that he bashed a male in the Fairfield area. The following persons no.8 to No.11 matched the description and were in custody at Wetherill Park on the 03/06/1995. 49The persons numbered 8 to 11 are identified as M.A. Warnes, C. Warnes, B. Hillier and M. Hatch. The remaining three suspects are referred to as Peter Fayka, Lefeiloaisamoa Saipaia and Big Sam (who has never been identified). 50The primary material upon which Detective Senior Constable Leighton appears to have relied in creating the document to which I have just referred is a running sheet, created on 4 June 1995, in which the following information appears: About 5 pm 04/06/1995 Detective McNeil received information which is as follows: A male named Willy from Yennora, was locked up at Wetherill Park Police Station. Whilst Willy was in the Lockup there was an Australian with short cropped hair and a goatee beard. The Australian stated to Willy that he and a couple of his mates had bashed a bloke at Fairfield real good and left him there. It is also stated that the Australian guy was drunk and kept on talking about the bashing. 51In a further running sheet created on 14 July 1999 the following information appears: Information from Detective McNeil is that he attended the Wetherill Park Police Station and spoke to Willy. He states that he interviewed Willy and he denied any involvement in the assault/murder. This inquiry was then eliminated. 52In the circumstances it was submitted that the four persons identified by Detective Leighton as having "matched the description" should all have been placed in a photographic array which could then have been viewed by the eye-witnesses in order to see if they could make an identification. It was further submitted that "the applicant is prejudiced by the failure by the police to properly investigate the possibility that one of the prisoners matching the description could have been the caucasian man described by Byrne and Cross". 53Before proceeding any further I should refer to the evidence which was adduced on this application concerning DNA testing. According to a report prepared by Ms Burger, dated 21 August 2003, a number of DNA profiles were extracted from a number of samples taken from the Adidas shoes. 54The samples were taken from: (i) the inside toe area of the right Adidas shoe, (ii) the inside tongue area of the left Adidas shoe, and (iii) DNA mixtures from the inner sole and the shoelaces of the Adidas shoes. 55Buccal reference samples were taken from Paul Beaven, Keith Walsh and David Hakalo. These suspects were excluded as being contributors to samples (i), (ii) and (iii). 56The DNA profiles of Jack Rai, Michael Rai, Mark Warnes, Chris Warnes, Billy Hillier, and Peter Fayka were entered into the DNA database. Their DNA profiles have been tested against all crime samples on the NSW DNA database. However, as counsel for the applicant points out, only the first two of the three samples which I just referred to were entered into the database. In other words, there is no evidence that the mixtures of DNA profiles taken from the shoelaces and inner soles of the shoes were entered into the database. It follows that of the original suspects, Yakup Tomruk, Mark Hatch and Lefeiloaisamoa Saipaia have not been subjected to DNA testing. Nor, for that matter has Michael Tomruk although, as I understand it, his profile was not available for comparison with the crime scene samples. (e) The destruction of a pair of Nike running shoes 57A Police Running Sheet dated 5 June 1995 records the following information: At 11.55am 05/05/1995 the above person [whose name has been removed] spoke to P.C. Cst P MAVIN at the north eastern ramp of the Fairfield Railway Station. He informed that he had just walked from his mothers [sic] address to the railway station and had seen a pair of running shoes in the park opposite Patricia [sic] Bros High School. Scene attended and Nike Air running shoes, black white and purple in colour located together on grass approx 5 metres from the western kerb of Fairfield St on off ramp from the Horsley Drive. Opposite small set of shops. Possible blood stains on front of left shoe. 58It is common ground that the distance between the crime scene and the location of the Nike shoes is approximately 550 metres. The evidence reveals that the Nike shoes have been destroyed. 59Counsel for the applicant submitted that "...the primary evidence relied upon by the Crown is a pair of Adidas shoes alleged to have been worn by the assailant and which the Crown allege belonged to the accused. The Crown relies heavily upon the fact that the Adidas shoes had the deceased's blood on them and were abandoned near the scene. ... However, the Adidas shoes were not the only running shoes abandoned in the vicinity. The Nike shoes were found proximate to the area where the deceased was found. They were observed to have 'possible blood stains'. The shoes were found on the same day as the Adidas shoes. The destruction of those shoes creates a fundamental and irreperable [sic] unfairness to the Applicant that cannot be cured by direction. It would be highly unfair to allow the Crown the advantage of relying on the Adidas shoes and the forensic evidence obtained there from when the applicant has been deprived of the opportunity to place before the jury evidence of another pair of running shoes found nearby that may have produced forensic evidence raising a reasonable alternative hypothesis. ... The Nike shoes, located as they were with 'possible blood staining', could have provided evidence establishing a link to one of the suspects nominated. The applicant is forever deprived of the opportunity to establish that link." 60In oral submissions it was contended that forensic testing may even have revealed that the shoes belonged to the deceased. It was also submitted that "the loss of the opportunity to have them tested deprived the applicant of the opportunity to put material before the jury of a reasonable alternative hypothesis" that someone else was the real offender. In highlighting what was said to be the inherent unfairness of the situation, counsel for the applicant emphasised what she described as the "seductive" nature of DNA evidence. 61Counsel for the applicant acknowledged that whilst the circumstances in which a permanent stay may be granted will be rare, it was nonetheless critical that this application should be determined solely upon an assessment of the facts of the present case. Indeed, it was upon that very basis that counsel sought to distinguish some of the decisions to which I have referred. For example, in relation to Hatfield (supra), it was submitted that the court in that case had determined that even though evidence had been lost, its loss did not affect other evidence in the case, such as admissions which had been made by the accused and listening device material. The consequence, so it was submitted, was that Hatfield was a case of a very different kind from the present one. 62It was also pointed out that in Gilham (supra), the applicant had given an account only shortly after the fatal incident. That factor, it was noted, had prompted the trial judge in that case to comment that "[t]o some extent the accused is in a better position than many accused who face trial after long delay or where evidence has become unavailable. His version of events has been preserved and is accessible in a recorded interview". Indeed, it was submitted that the present applicant faced the very disadvantage which was identified in Gilham , namely of being accused of a crime many years after the event. Accordingly, it was submitted that the circumstances in Gilham are also distinguishable from the present case. 63So much may be accepted. Nonetheless, the range of circumstances which emerge from the various authorities to which reference has been made, together with the statements of principle contained in them, provide some assistance in resolving the present application. That said, I unhesitantly accept that the present application falls to be determined upon an assessment of totality of the evidence that has been adduced in respect of it. Consideration 64It seems palpably clear that the deceased was the victim of an unlawful homicide. In addition to the very obvious interest which the deceased's family and friends have in the matter, the community itself has a very significant interest in having serious crimes, such as the present one, promptly investigated in order that any person alleged to have been responsible for it can be brought before the courts. The consequence is that any information which may lead to the apprehension of a suspect should be investigated by police as soon as is reasonably practicable. It is reasonable to assume that information that a nominated person has admitted responsibility for having killed someone would normally engage the immediate attention of investigators. In this case two such persons were nominated. By the time each of those persons were nominated, it would appear that all other leads had been exhausted. In those circumstances, one might reasonably have thought that any new information would have been pursued as a matter of priority. The apparent failure to do so is, in my view, quite bewildering. It should also be observed that various other lines of enquiry were only recently investigated and then, as I understand the situation, only as a result of requests made by the applicant's legal representatives. 65It is convenient to now deal with each of the separate matters that were raised on behalf of the applicant. (a) The failure of police to promptly investigate information received in 1999 that Claude Rinston had admitted killing the deceased 66The initial police investigation can be legitimately criticised upon the basis that no inquiry was made concerning the identity of a Claude Rinston until 2009, that is, approximately 10 years after police first received the information about him. Detective Willey gave the following evidence in relation to efforts which he has made to locate that person: Q. In the case of Claude Rinston, in your statement that's before his Honour, you say that you made a number of enquiries to ascertain further information as to the location of that person. Then you say including, and you nominate things that you did. Could you tell the Court the full extent of the enquiries you made to ascertain the identity or further information concerning Claude Rinston? A. I've conducted searches of the New South Wales Police COPS data base system which has a national search function. Searching for the name Claude Rinston there were no results for that name or for the surname Rinston alone. I've also conducted enquiries with the New South Wales RTA data base, for the name Claude Rinston. Again, no match to the name Claude Rinston on that data base. I did an inquiry with the Births, Deaths and Marriages for a period of January 1970 to December 1979, for Claude Rinston. That was unable to match any person with a birth certificate. I've conducted searches on the White Pages in each state and territory and unable to match the name Claude Rinston. I've also done a Google search and Facebook search for Claude Rinston and have not been able to match the name Claude Rinston to any person. 67Moreover, Ashur Darmo, the source of the information that Claude Rinston had admitted killing the deceased, was not interviewed until approximately 12 years after he is said to have initially provided that information. The delay in pursuing those matters has not been explained. Even allowing for the fact that the information which was provided may have been regarded as somewhat unreliable because of the circuitous fashion in which it came to light it still, in my view, ought to have been investigated rather more promptly. 68No doubt counsel for the applicant will be able to explore each of the criticisms which I have identified before the jury. It can be anticipated that police efforts to locate Claude Rinston will also be closely scrutinised. Furthermore, details of the initial information will undoubtedly be elicited in cross-examination in such a fashion as to provide a basis for a submission that the Crown is unable to exclude to the requisite standard that it was Claude Rinston who killed the deceased. Moreover, Ashur Darmo is to be called by the Crown as a witness and can be cross-examined. In my view, it is a matter for speculation as to what he may have said had he been interviewed in 1999 or shortly thereafter. For all one can tell, he may have adopted the stance which he now appears to be taking. 69In all those circumstances I am not persuaded, in respect of this issue, that the applicant has been able to demonstrate the existence of the kind of prejudice for which he contends. (b) The failure of police to promptly investigate information received in 2005 that Michael Tomruk had admitted killing the deceased 70It was not suggested by the Crown that the source of the information, or the information itself, was such as would require him or it to be immediately disregarded as being inherently unreliable or improbable. In those circumstances, it is most curious that the 'source', Brett Kennedy, was not interviewed until recently, that is some six years after he had first reported the conversation to police. Equally curious is the fact that the man who is alleged to have made the admission, Michael Tomruk, was not interviewed for a period of about four years after the alleged admission was made, particularly since he was said to be one of the original suspects in the matter. By then fourteen years had elapsed since the deceased had been killed. Moreover, nothing was advanced to explain the delay in interviewing either man. It is also somewhat surprising that the allegation that he had admitted to the killing was not put to Michael Tomruk when he was interviewed. Again no explanation was proffered as to why that had not been done. 71As I have already observed, Michael Tomruk told police that he had spent the 1995 season playing rugby league in Mackay, Queensland and that he had gone there with his friend, Sam Tapa in order to do so. He said that he had only returned to Sydney once during that period and that was to attend the funeral of Sam Tapa's father. In an effort to verify his story, police in July 2009 obtained documentation, which consists of newspaper clippings and other official programs for the competition, from the Mackay and District Rugby League Group. Notwithstanding its limitations, that material lends some support for Michael Tomruk's contention that he was playing in that competition during that season. 72That same material also indicates that Sam Tapa was listed in the program to play in the Mackay competition on the weekend of 3/4 June 1995. It is submitted by the Crown that Mr Tapa is unlikely to have missed his father's funeral and so that it is improbable that it was that weekend that Michael Tomruk was in Sydney. Mr Tapa told police in May 2009 that he had been playing rugby league in Mackay in 1995. He said that the only time that he had returned to Sydney was to attend his father's funeral which he thought was in September of that year. When spoken to recently, Mr Tapa told police that he had nothing new to add to what he had previously told them but declined to make a formal statement. Although the Crown made both Michael Tomruk and Sama Tapa available for cross-examination on this application, counsel for the applicant declined the invitation to do so, although she had initially indicated that they would be required. 73The Crown intends to call Michael Tomruk at the trial. He will undoubtedly deny that he killed the deceased. Nevertheless, the applicant will be able to test him in cross-examination about his purported alibi as well as upon his alleged admission. It is true that there is no direct evidence, either way, as to his whereabouts at the time of the fatal incident. It is of course entirely possible that an investigation which had addressed that issue at an earlier point in time may have assisted the applicant. By the same token, an earlier investigation may have enabled Michael Tomruk, when events were fresher in his mind, to have provided a more detailed account in support of an alibi. In assessing his alibi, it must be recognised that the first awareness that police had of Michael Tomruk's alleged admission was some 10 years after the fatal incident. In those circumstances this issue will remain a matter for speculation. 74So far as Mr Kennedy's credibility is concerned, it may be accepted that his memory has dimmed in the period since he provided the information to police. However, his evidence suggests that his memory may have been dulled, even in 2005, by the alcohol and drugs which he was then ingesting. Nevertheless, so far as his credibility is concerned, it is significant that evidence as to what he told police in 2005 has been retained and can, and no doubt will, be elicited before the jury. 75In any event, it appears to me that the applicant has a considerable body of material upon which to exploit the failure of the police to promptly investigate the admission allegedly made by Michael Tomruk. Although it is difficult to be dogmatic about the issue at this stage, particularly given that the invitation which was extended to the applicant to cross-examine Michael Tomruk and Sam Tapa was not accepted, it appears highly likely that the applicant will still be able to submit to the jury that the Crown is unable to exclude the reasonable hypothesis that it was Michael Tomruk who killed the deceased. To that end, attention will undoubtedly focus upon the fact that he has not been subjected to any DNA analysis. 76In all those circumstances I am not persuaded, in respect of this issue, that the applicant has been able to demonstrate the existence of the kind of prejudice for which he contends. (c) the loss of a number of interviews conducted with suspects and other witnesses as well as the loss of photographic arrays shown to witnesses in the initial stages of the investigation 77Although it is common ground that various photographic arrays have gone missing, photographs of four of the original principal suspects, Yakup Tomruk, Paul Beavan, David Hakalo and Keith Walsh, were placed into a video identification array. That video was viewed by John Byrne and Ian Cross on 24 July 1998, by Alan Jones on 12 January 1999, and by Raquel and Victor Caballero on 17 February 1999. The first three were eye-witnesses to the events surrounding the fatal incident, whilst the Caballeros were involved in another incident that evening which may have involved the persons who were suspected of killing the deceased. It is common ground that none of those witnesses identified any of those four persons. 78There are also, as I have said, a number of missing interviews. Although they have been described as interviews it is not clear what form these took. What is known however is that each of the missing interviews relating to the five persons who viewed the video identification array, occurred on the day of the viewings. As I have indicated, none of the witnesses were able to make a positive identification. It appears to be common ground that the irresistible inference is that each of those interviews concerned the identification process. In any event, the running sheets which contain that information are available. Furthermore, the original statements made by each of those five persons have been retained. Importantly, so far as John Byrne and Ian Cross are concerned, a number of other statements which they made are also still available, together with the evidence which they each gave both at the inquest and at the committal hearing. 79That leaves for consideration the missing interviews which were conducted with Keith Walsh, Paul Beavan and David Hakalo. The interview with Mr Walsh was conducted on 7 April whilst the interviews with the other two were conducted on15 April 1998. However, summaries of each of those interviews are contained in running sheets maintained by the investigation team. Included in that summary, is a denial in each case by the person in question, of any involvement in the deceased's murder. There is a further interview which was conducted with Mr Walsh approximately two weeks after the murder itself, that has also gone missing. However, it is clear from the summary of the interview conducted with him on 7 April 1998, and from a subsequent ERISP interview conducted with him on 18 August 1999 (which is in evidence), that he has consistently denied from the outset any involvement in the deceased's murder. Finally, each of those three persons was interviewed on occasions other than those in which respect of which the interviews have gone missing. Each of those interviews are available. I should also record that both of the interviews which were conducted with Yakup Tomruk on 6 June 1995 and 13 October 1999 respectively, in which he denied involvement in the offence, are available. 80It is true that this aspect of the matter received only passing reference in the submissions. Nevertheless, in my view, the applicant has not demonstrated that he has suffered any real prejudice in respect of this aspect of the matter. (d) The failure of police to promptly show eye-witnesses photographs of four potential suspects with goatee beards 81Somewhat belatedly, the Crown produced photographs of each of the four persons whom counsel for the applicant described as potential suspects. The photographs were taken on 4 June 1995 after those persons were taken into custody at the Wetherill Park police station. The evidence reveals that Mark Hatch was arrested at about 11.45 pm on 3 June 1995 following a dispute with his neighbour which required the attendance of police. The Warnes brothers were each arrested at about 10.20 am on 4 June 1995 and charged with larceny. Billy Hillier was arrested at about 1.05 pm on 4 June 1995 and was also charged with larceny. The essential submission advanced on behalf of the Crown is that the only one of the four who could come close to meeting the description of an Australian/Caucasian male with a goatee beard with short cropped hair was Mr Hatch. It was submitted, and understandably so, that the Warnes brothers could be immediately eliminated as suspects because each of them had "a full head of collar length hair" at the time and neither had a goatee beard. The brothers were each interviewed in 1999 about the present matter. They each said that they had been heavy drug users, both in 1995, and when they were interviewed in 1999. For that reason, neither was able to shed any light on the matter. 82The Crown intends to call Billy Hillier. He made a statement to police on 4 May 2011 in which he said that he is also known as Willy. The Crown contends that he can be excluded as a suspect because he was the person who provided the information to police about what had been said in the cells by the man with the goatee beard. Furthermore, the Crown contends that Mr Hillier can be excluded as a suspect because his photograph reveals a man who has neither a goatee beard nor short cropped hair. Counsel for the applicant however contends that his photograph did match the description which the eyewitness John Byrne provided to police in his initial statement. Mr Hillier also told police that he did not kill the deceased, but that otherwise he now has little recollection of the incident in the cells. 83The Crown also sought to adduce material to show that Mark Hatch was the person in the cells who had bragged about the bashing. Without going into the finer detail of the matter, it is clear that that contention was based upon what Detective Willey conceded, in evidence, was merely an assumption on his part. Mr Hatch told police that that he did not recall speaking to anyone that evening apart from the police. He also told them that he knew nothing about the murder. 84The Crown also led evidence that Mr Hatch's wife believed that he had been at home on the evening of the fatal incident. I accept the submission advanced by counsel for the applicant that little weight can be placed upon that assertion given that her statement was taken only recently about events which occurred in 1995. Although the Crown accepts that of the four persons in the cells, Mr Hatch is the one who most closely meets the description given by the eyewitnesses, it does not concede that he actually does meet it. For that reason, it submitted that there "was no proper basis for the investigating police to show the photos of these four persons to witnesses in the Russell Lyons homicide investigation". 85The Crown also submitted that the link between the description provided by the eyewitnesses, and the information given by the man who was bragging in the cells, was somewhat tenuous. It was pointed out that no details were provided about any of the circumstances surrounding the alleged bashing, such as when, or indeed where, it is said to have occurred. Nor, it was submitted, was any description provided of the person who had been bashed. Moreover, according to Mr Hillier, the man in the cells claimed to have been acting in company whereas the Crown case is that the applicant, in attempting to rob the deceased, had acted alone. 86Counsel for the applicant, on the other hand, submitted that the evidence demonstrated that each of those four persons was at large at the time of the fatal incident and could not, upon that basis, be excluded as a suspect. Counsel also submitted that the time, location and general description of the "bashing" all provided a link between the two events. Not surprisingly, counsel also emphasised the fact that the initial investigation team had clearly formed the view that there was such a link. 87I do not have to finally resolve the issues which are raised by the competing submissions. That is because any prejudice which may have been occasioned to the applicant will be offset by the opportunity he will have of submitting to the jury that the failure of the police to investigate this aspect of the matter has the consequence that the Crown cannot exclude the reasonable possibility that it was one of the four men in the cells, who were said by police to have "matched the description" provided by eyewitnesses, who killed the deceased. 88In those circumstances I am not persuaded, in respect of this issue, that the applicant has been able to demonstrate the existence of the kind of prejudice for which he contends. (e) The destruction of a pair of Nike running shoes 89As I indicated earlier, the Nike shoes were located on the same morning and in the same general area as the Adidas shoes. Furthermore, there were "possible" blood stains on the front of one of the Nike shoes. It is clear that those shoes were regarded by police as having potential relevance to this investigation. No explanation has been, nor it appears can, be proffered for the destruction of the shoes. 90Beyond that, it is impossible to state with any precision what significance the Nike shoes have in relation to the killing of the deceased, especially as they were located some little distance from the actual crime scene. Be that as it may, it remains a matter for speculation as to whether testing of the shoes would have assisted the applicant (or for that matter the Crown). To have any relevance it would presumably need to be established, as a bare minimum, that the substance found on the shoes was not only human blood, but that of the deceased. 91However the apparent destruction of the shoes, particularly given the view taken at least by those involved in the initial investigation, that they had some significance in this matter, will undoubtedly provide the applicant with material upon which to criticise the Crown case. Moreover, it will enable the applicant to advance the submission that the Crown cannot exclude the reasonable possibility that those shoes were linked to this offence and that therefore someone other than the applicant was responsible for killing the deceased. 92In those circumstances I am not persuaded, in respect of this issue, that the applicant has been able to demonstrate the existence of the kind of prejudice for which he contends. Conclusion 93Although I have dealt with each of the matters in turn, I have not lost sight of the applicant's principal submission that it is the cumulative effect of the various factors which have been identified that gives rise to the need to grant a permanent stay. I have given full weight to all those considerations including the fact that the police investigation was, in significant respects, plainly deficient. In my view it is appropriate, as the Court said in Gilham (supra), to follow the approach adopted in Helmling (supra). To re-iterate, Hunt CJ at CL observed in that case that: What the applicant has lost therefore is the chance that he may have been able to do better; he has not lost the certainty that he would have done better. He had been permanently deprived of an opportunity simply to explore an avenue of inquiry which might have led to his acquittal. That may in some cases be sufficient, but they would in my view be rare. They would not usually produce the extreme situation which the authorities require . [at pp 7-8] [emphasis added] 94I also acknowledge that even if prejudice to the applicant has been occasioned, that would not of itself, as was observed in Hatfield (supra), compel the conclusion that the trial would be necessarily unfair. 95In my view, the applicant has failed to discharge the "heavy onus" which is cast upon him of establishing that the circumstances of the case warrant the granting of a permanent stay. In arriving at the conclusion that this is not a case in which "exceptional circumstances" exist, I have engaged in the "weighing process" referred to by the High Court in Walton v Gardiner (supra). As part of that exercise I have also had due regard to what the High Court described in Dupas (supra) as "the need to take into account the substantial public interest of the community in having those charged with criminal offences brought to trial". 96Finally, it is pertinent to observe that the various matters which have been relied upon as being likely to give rise to prejudice are capable of being revisited during the course of the trial should the occasion arise: see Gilham (supra). In other words the applicant would not be precluded from making a further application for a stay if the circumstances warranted it. See Aydin (supra). Nor am I persuaded that it would be impossible to fashion appropriate directions or warnings to the jury to overcome any prejudice that exists or that may arise. That could extend to include reinforcement of any criticisms made by counsel about deficiencies in the Crown case. See Ulman-Naruniec (supra) [at para 42]; Penney (supra) [at para 17]. Order 97The application for a permanent stay is refused. ********** 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. Decision last updated: 19 July 2011