The Queen v Smith[1997] QCA 109

IN THE COURT OF APPEAL 

SUPREME COURT OF QUEENSLAND

C.A. No. 566 of 1996

Brisbane

Before Davies JA

Ambrose J

White J

THE QUEEN

v

GORDON HOLDEN SMITH

(Applicant) Appellant

McPherson JA

Ambrose J

White J

Judgment delivered 9 May 1997.

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 9 May 1997

I have had the advantage of reading the reasons for judgment of Ambrose J. and White J.  I agree with both of their Honours both as to their conclusions and their reasons.

REASONS FOR JUDGMENT - B. W. AMBROSE J

Judgment delivered 9 May 1997

This is an appeal against conviction on the ground of miscarriage of justice. The appellant was refused a stay of proceedings upon an indictment charging him with extortion as a public officer pursuant to s. 88 of the Criminal Code.  The stay was sought on the ground that a witness, who had on a prior occasion given evidence exculpating the appellant upon the charge, could not be located to effect service on him of a subpoena to attend court; the witness was aware that the appellant sought to have him give evidence upon his trial and was deliberately evading service of the subpoena.

Although a number of matters were raised in the notice of appeal this point was the only one argued.  The appellant seeks an order setting aside the conviction and for a new trial with a stay of proceedings until the attendance of the witness in question can be procured.

I will recount briefly the facts canvassed. 

The appellant was a police officer stationed on the Gold Coast at times material to the offence charged. He had been a member of the police force for approximately 12 years.

It was the Crown case that he received from a person he believed to be the representative of the insurer of a stolen motor vehicle, a reward paid for the recovery of possession of that motor vehicle for the benefit of the insurer.  The insurer was said to have paid out to the person from whom the motor vehicle had purportedly been stolen, moneys payable under an insurance policy and the appellant believed that the insurance company in the exercise of its rights of subrogation was paying a reward to recover that motor vehicle. 

It is unnecessary to recount in detail the whole of the circumstances leading to the laying of the charge. It suffices to say that the person with whom the appellant was dealing was not in fact a representative of an insurance company but an investigator employed by the Criminal Justice Commission to report on the appellant's activities as a police officer.  Evidence was called as to tape recordings of conversations that took place between the appellant and that person and other persons assisting in the investigation which strongly supported the inference that he received for his own benefit at least part of the sum of $9,000 handed to him by the investigator to be paid as a reward to a police informer named Sawyer for the recovery of the stolen motor vehicle. Evidence given upon trial suggested that at the time the "reward" was discussed and received by the appellant for payment to Sawyer he believed that Sawyer from whom he was to procure the car had in fact been involved in its theft.  Evidence was given by the former wife of the appellant which strongly supported the Crown case.

A complicating factor was that Sawyer through whose intervention the appellant was able to procure the return of the stolen motor vehicle had a significant criminal history.  He had been called before the Criminal Justice Commission in June 1993 to give evidence concerning his involvement with the appellant in connection with the motor vehicle in question.  He gave evidence on oath that in fact the appellant had not received any part of the $9,000 paid as a reward for the return of the car but that he had received the whole of that sum.

This evidence from Sawyer was quite inconsistent with bank records of the appellant showing the deposit of the $9,000 paid by bank cheque and its ultimate disposition;  there was clear documentary evidence to show that $6,000 of the money which the appellant had deposited in his bank account was drawn out within a short time and used to pay for a motor vehicle given to his daughter as a present. 

Nevertheless if evidence were given by Sawyer consistent with that which he gave before the CJC inquiry and the jury took the view that it might possibly be correct that evidence would constitute a complete defence to the charge laid against him.

The events in issue occurred in December 1992.

Not surprisingly the CJC and officers of police involved in the investigation into the appellant's conduct were less than satisfied with the reliability of  Sawyer's evidence.

Eventually in July 1993 steps were taken to search the premises of both the appellant and Sawyer on the Gold Coast and to investigate various activities in which they were allegedly involved.  These investigations resulted in the issue of 13 warrants for the arrest of Sawyer for offences none of which in the view of the police officers deciding such matters justified the expense of pursuing Sawyer outside the State of Queensland to execute them.

Unsurprisingly the appellant was anxious to have Sawyer called by the Crown so that he might be cross‑examined - presumably with a view to having him give evidence before the jury to the effect of that already given before the CJC inquiry.

Equally unsurprisingly the Crown was disinclined to call Sawyer either to give evidence for the Crown or for the purpose only of making him available for cross‑examination on behalf of the appellant.

Shortly after the police investigation of Sawyer in July 1993 in connection with drug offences he made a complaint that the police officer involved in both that investigation and the investigation of the conduct of the appellant which led to instituting proceedings for the offence charged, tried to persuade him to give perjured evidence falsely implicating the appellant in criminal activity to avoid charges being preferred against him.  This assertion by Sawyer was investigated by the appropriate authorities and found to be unsubstantiated.  There was a conflict between the account of Sawyer and that of the police officer involved who was supported by the evidence of the CJC investigator who had pretended to be an insurance company representative when dealing with the appellant.

Eventually the appellant was charged on a complaint sworn towards the end of August 1994 - about 14 months subsequent to the evidence given by Sawyer before the CJC exculpating him with respect to the receipt of any part of the reward to which Sawyer was said to be entitled under the arrangement made between the appellant and the CJC investigator.

There was delay in proceeding with the trial after the committal of the appellant.  Eventually the charge was listed for hearing in the District Court on 25 September 1996.  On 24 September 1996 however an application was made for a stay on the ground that Sawyer could correctly be categorised as a witness who should be called by the Crown.  He was not called upon the committal proceedings and the Crown prosecutor in the District Court made it quite clear that it was not intended to call him upon the appellant's trial.  As alternative relief the appellant sought an adjournment of his trial to enable further steps to be taken to procure Sawyer's attendance to give evidence upon it.

The Crown opposed both the application for a stay and the adjournment.

It emerged upon the stay application that perfunctory inquiries had been made as to the whereabouts of Sawyer prior to committal of the appellant for trial.  Those inquiries had been limited to Queensland.  Subsequent to committal, further unproductive inquiries were made within Queensland as to the whereabouts of Sawyer.

It emerged that at the committal proceedings the presiding Magistrate described Sawyer as "a crucial witness".

In spite of this observation made at the committal proceedings no real steps seem to have been taken to discover the whereabouts of Sawyer until a week before the matter was listed for trial when the solicitors for the appellant who had retained a private inquiry agent to discover Sawyer's whereabouts supplied the Inspector of police involved with the preparation of the case against the appellant with an address in Sydney.

That Inspector of police said that he had attempted to make arrangement to have Sawyer extradited back to Queensland however the Assistant Commissioner for Police on the Gold Coast would not give approval for the expenditure of the money necessary to achieve this.  The basis for extraditing Sawyer to Queensland was the fact that 13 warrants had issued for his arrest upon charges shortly after he gave evidence exculpating the appellant before the CJC inquiry.  Most of those charges had been preferred by police officers on the Gold Coast.

The inspector of police conceded that no inquiries had been made on behalf of the Queensland Police Force in New South Wales at the address which he had been given by the appellant's solicitors a week earlier.  He said that no inquiries would be made until approval for the expenditure of funds had been received from the appropriate officer of police on the Gold Coast.

The private inquiry agent retained by the appellant to trace Sawyer said that a week prior to the stay application he had located a man he believed to be Sawyer at an address in Sydney.  One of his employees had spoken to Sawyer by telephone.  On the day of the stay application that inquiry agent had attempted to make telephone contact again only to find the telephone numbers used by Sawyer had been disconnected.

For the appellant, complaint was made that there was no reason why he should not have been charged and the matter dealt with in 1993 while the man Sawyer was still in Queensland and indeed still giving evidence before the CJC.

In essence counsel for the appellant sought a stay of the proceedings until Sawyer's attendance could be procured upon his trial.  It was contended that the only reason the Crown asserted that Sawyer was unreliable was because "he doesn't say what they would like him to say".  It was contended that the Crown had been "locked into this position by the CJC" and that if the trial was to be a fair one Sawyer should be available to be cross‑examined by the appellant.  Although counsel for the appellant asserted that the Crown ought call Sawyer for cross‑examination by him, it would seem at least arguable that having given evidence upon oath before the CJC exculpating the appellant, if called to give evidence on the same matter he changed his story, he might be treated as a hostile witness and if contradicted by the terms of his sworn evidence before the CJC that evidence might be tendered and pursuant to s. 101 of the Evidence Act become evidence of the truth of its content.  I have little doubt that this would be a consideration should Sawyer attend court under circumstances where the appellant was forced to call him.  Undoubtedly from the appellant's point of view the preferred course would be for the Crown to call him so that he might be cross‑examined.  Having regard to the evidence given by the appellant upon his trial should Sawyer be called by the Crown even for cross‑examination the appellant might elect not to give evidence himself ‑ he might choose either to rely upon what Sawyer said on oath consistent with his CJC evidence or if necessary pursuant to S 18 of the Evidence Act to tender the sworn evidence given by Sawyer before the CJC the effect of which was to exculpate him upon the charge.

In fact the appellant procured the issue of an interstate subpoena for Sawyer and sent it off for service on him in Sydney.  The attempts to effect service of the subpoena proved ineffective. 

The Crown in opposing the application for stay made it quite clear that it would under no circumstance call Sawyer as a witness.  After referring to the nature of the evidence to be led against the appellant the Crown prosecutor observed:

"In those circumstances in the interest of justice there is no way that the Crown could present him [ie Sawyer] before the court without him being cross‑examined by the Crown - he would never be called as a witness for the Crown, would never be made available as a witness for cross‑examination by the defence.  If he was to give evidence it would have to be as a defence witness."

In the light of the  Crown's attitude it was contended that there was just no ground for a stay of the proceedings on the indictment.  The Crown did not strenuously oppose the trial being adjourned to give the appellant the opportunity of locating Sawyer so that he might be served with a subpoena to attend as a witness in the defence case.

The learned trial judge refused to order a stay of proceedings.  After observing that the matter had been awaiting trial a considerable time and had been adjourned a month earlier, his Honour expressed some doubt as to the likelihood of the whereabouts of Sawyer being ascertained.  He queried firstly whether if the trial were adjourned it was likely that Sawyer would be located and secondly if he were located what the likelihood was of procuring his attendance to give evidence.

The Crown prosecutor conceded that Sawyer would be an important witness upon the appellant's trial.  He also conceded that had Sawyer "been available at the committal ‑ the Crown could and should have made him available for cross‑examination at the committal".  The prosecutor explained that the non-execution of the warrants for the arrest of Sawyer was based purely on budgetary considerations and the view apparently formed by somebody in authority in the police department that none of the offences upon which the warrants were based was sufficiently serious to justify the expenditure of money from a limited budget to have them executed.

The learned trial judge expressed the view, again unsurprisingly, that Sawyer would be an important witness - ignoring altogether the question of his credibility.

Counsel for the appellant sought an adjournment for "a reasonable time to make representations ... to the highest authorities with a view to having the warrants for the arrest of Sawyer executed".  Counsel for the appellant then referred to the possibility of getting a trial date in December and said:

"If there was a court time available then, then I'd submit that's not an unreasonable time to go through the exercises that have to be gone through and  - for the trial to take place then - come what may."

It was estimated that the trial would take four days to complete.

His Honour then granted the adjournment on the basis that the evidence Sawyer could give was important and indicated also that the Crown "should do what it can to co‑operate in locating Mr Sawyer".  However he remarked:

"I do not want the defence to get the impression that it is now up to the Crown to find this witness.  I would be reluctant to grant any further adjournment of the matter in the circumstances."

His Honour then adjourned the trial to 2 December 1996.

The Crown prosecutor gave an undertaking, to the extent of his ability to do so, that the Crown would co‑operate as much as it could to have Sawyer brought before the court.

On 2 December 1996 the trial was called on for hearing.  The jury was empanelled and the Crown listed the witnesses it proposed to call. The accused was then placed in charge of the jury.

In the absence of the jury counsel for the appellant again referred to the application for stay of proceedings made on 24-25 September 1996 and made the following submission.

"I don't wish to waste time on this and I don't wish to rehash the whole thing, but I should formally make that same application and rely upon the same material - - - I don't suggest anything additional (i.e. to that previously canvassed in September) that I need to add.  The witness Sawyer, as I understand it, is still not located.  Information was provided to the police and a request was made of them for his apprehension and extradition but he's not here.  And as I say, I don't wish to waste time on it but I still make an application for the stay pending his appearance."

The Crown Prosecutor opposed the application.  He stated that the address of Sawyer made available on the last application for a stay had been investigated.  He said, "It was checked out and it had no connection with the witness Sawyer."  He stated that subsequently it had been ascertained that there were in fact warrants in existence - apparently issued in New South Wales - for the arrest of Sawyer as well as those outstanding in Queensland.  He contended that it was the Crown case that the evidence against the appellant was "largely from the words out of his own mouth recorded on tape" and that the matter should then proceed.

The learned trial judge refused the application and commented on the fact that no new material had been placed before the Court to support it.

No application was made on behalf of the appellant for any further adjournment of the proceedings.  When the matter had been ventilated on the previous application for stay and/or adjournment in September, the learned trial judge in adjourning the matter made it clear that there would have to be very good reason to obtain a further adjournment when the matter was called on for hearing on 2 December.  No effort was made on behalf of the appellant to place additional material before the learned trial judge or indeed to even suggest a further adjournment might be justified. Indeed, it seems to have been common ground between the Crown Prosecutor and counsel for the appellant that the whereabouts of Sawyer could not be established and that there was very good reason, because of the warrants issued for his apprehension in both Queensland and New South Wales, to suspect that he would take steps to avoid being located.

The trial of the appellant then proceeded for some days.  The Crown called the CJC investigator to prove that he had given the appellant a bank cheque for $9000 and had taped the conversation that had taken place between them when he did so.  He also gave evidence of other telephone conversations that he had with the appellant which had also been taped.  These tapes were played to the jury.  The evidence of this investigator and the content of the conversations was not challenged by the appellant.

The appellant himself gave evidence that he had indeed received the cheque for $9000 and had paid it into his bank account.  I will not attempt to analyse the appellant's long account given both in chief and under cross-examination in which he swore that apart from the sum of $500 which he had kept as compensation for his "out of pocket expenses" in dealing with Sawyer to arrange the return of the stolen motor-vehicle, the whole of the money received by him from the CJC investigator had in fact been paid to Sawyer.   On my reading of the evidence his version of events might be described as improbable, to say the least of it, but nevertheless he did give that evidence and it may conceivably have been open to the jury to entertain a doubt as to whether he had in fact received any benefit personally from the payment of $9000 by cheque - payable to him ‑ which he received from the CJC investigator.  There was a good deal which emerged in the evidence to suggest that the appellant had used at least $6000 of the money he received for the purchase of a motor-vehicle for his daughter.  However, he denied that this was the case.

Whether his denial would have been given any weight had his evidence generally been supported by evidence from Sawyer along the lines given before the CJC inquiry is a matter for speculation.  The jury may conceivably have given more weight to the appellant's version of events had Sawyer given evidence to support them.  In fact, there was a degree of inconsistency between the evidence which Sawyer gave before the CJC inquiry concerning his receipt of the whole of the $9000 which the CJC investigator had paid to the appellant and the version of events given by the appellant that he in fact had kept at least $500 of that sum for his own "out of pocket expenses" connected with procuring the return of the stolen vehicle.

In my view it would be unhelpful to analyse in depth the rather tortuous explanations given by the appellant as to the disposition of the money which he paid into his bank account which he claimed led to the result that he received no net personal benefit from any part of it.

The real question is whether, in the light of the evidence given by the appellant and in the light of the evidence which he expected or at least hoped Sawyer would give if he could be compelled to give evidence upon his trial, a miscarriage of justice was caused by the refusal of the trial judge to stay proceedings until the attendance of Sawyer at the appellant's trial could be procured.

In considering this question there are a number of matters which should be kept clearly in mind -

(1)Were Sawyer's attendance procured, there is no certainty that he would not claim privilege should he be asked questions relating to his dealings with the appellant on the ground that his answers might tend to incriminate him.  He could not make such a claim to avoid giving evidence before the CJC inquiry - see S94 (2) of The Criminal Justice Act 1989.

(2)Had Sawyer died before the trial of the appellant, it could not conceivably have been contended that the trial ought be stayed because Sawyer was no longer available to give evidence to support the defence case on the matters in issue.

(3)There was no statutory basis upon which the sworn evidence given by Sawyer before the CJC inquiry could be made admissible upon the appellant's trial unless Sawyer was actually called as a witness.  Even if he were called as a witness problems may arise in placing before the jury the sworn evidence which he gave before the CJC inquiry.  The evidence which he gave upon the inquiry would be merely hearsay evidence upon the appellant's trial and prima facie inadmissible.

It may have become admissible evidence of the truth of its contents pursuant to ss. 18 and 101 of the Evidence Act if Sawyer did not claim privilege.

Before turning to consider the principal contention of the appellant that his conviction should be set aside on the ground of miscarriage of justice arising from the refusal of the learned trial judge to stay the trial until the witness Sawyer could be produced to give evidence, it is convenient to deal with some of the other matters canvassed upon the appeal.  One of the matters raised was whether the learned trial judge ought to have adjourned the appellant's trial to a date to be fixed and taken what steps were appropriate to have Sawyer produced to the court to give evidence upon it.  It was suggested that the judge was empowered to direct an officer of the court to subpoena Sawyer as a witness and should he decline to attend, a warrant might then issue to compel his attendance.  The suggestion was that if the trial judge called Sawyer - presumably at the conclusion of the Crown case then he might give both the Crown and counsel for the accused  permission to cross‑examine him.

It is clear that it is only in exceptional cases that a trial judge will call a witness.  In this respect I refer to Apostilides v R  (1984) 154 CLR 563, Richardson v R (1974) 131 CLR 116 at 119-122.

Generally speaking it is within the discretion of the Crown prosecutor to determine the witnesses to be called to support the Crown case.  If he determines not to call a witness able to give direct evidence relevant to an issue upon the trial because in his judgment the evidence of that witness is likely to be unworthy of belief then it is really a matter for him to decide whether he will perhaps call that witness for cross‑examination or in the alternative make him available to be called by the defence if so desired.  For a recent statement of principle relating to the obligation of the Crown prosecutor to call witnesses as I refer to R v Russell-Jones (1995) 1 Cr.App.R. 538.

A recent reaffirmation of the principle that a judge in a criminal trial will exercise his power to call a witness only rarely for the ends of achieving justice and fairness, see R v Grafton (1993) 96 Cr.App.R. 156.  The Australian authorities relating to the function of the Crown prosecutor to determine which witnesses are to be called to support the Crown case are dealt with in Criminal Practice and Procedure NSW - Butterworths - vol. 1, para. 7910.40.  The same topic is discussed in Bourkes Criminal Law of Victoria vol. 1 pp. 6045‑6047.

It is unnecessary to analyse the principles of law canvassed in those texts or to consider the extent (if any) to which Australian practice has departed from the English practice with respect to these matters, or to embark upon consideration of what might have been the power of the trial judge to call Sawyer as a witness had his attendance at court been procured in one way or another and had the Crown declined to call him as a witness for cross‑examination by the appellant.  Were his attendance at court procured for the appellant's trial it would be a matter for the learned trial judge to determine whether in the exceptional circumstances of the case it was appropriate to use the power he had to call that witness.  Undoubtedly had both the Crown and the appellant asked that he do so he may have considered taking that course and giving each of the Crown prosecutor and counsel for the appellant the right to cross‑examine him.  Whether the circumstances would justify such a course would depend upon the way the case had progressed at the time the application was made.  In light of the evidence given upon the trial, it would seem that the appellant's version of events relating to his disposition of the $9,000 received from the CJC investigator would differ from the version of events given by Sawyer before the CJC inquiry.  If there were a re-trial of the issue between the Crown and the appellant the evidence the appellant gave upon his trial of course would be admissible and there would seem to be significant inconsistencies between his version of the disposition of the $9,000 he received to pay to Sawyer and Sawyer's version.  This has some relevance when considering whether it can be demonstrated that miscarriage of justice occurred by reason of the refusal to stay the trial pending the attendance of Sawyer to give evidence upon it.

It must be kept in mind that the evidence Sawyer gave before the CJC was known to both the Crown and the appellant.  Sawyer was not called as a witness upon the appellant's committal proceedings.  He could not therefore be categorised as a witness "named on the back of the indictment" with which the authorities to which I have referred largely relate.

In my judgment in the circumstances the Crown was not obliged to call Sawyer as a witness upon the appellant's trial.  The appellant of course was perfectly entitled to call him to support his case. 

Turning to the ground of appeal argued, in my view a stay of a criminal trial will normally be ordered only on the ground of an abuse of the criminal process which will prevent or make it difficult for an accused to obtain a fair trial.  Matters of inordinate delay or steps positively taken to impede the presentation of a defence will enliven the jurisdiction of the court to stay the trial.  In this respect I refer to Jago v District Court (1989) 168 CLR 23 at 34, Barton v R (1980) 147 CLR 75 at 111 and the cases referred to in Butterworths Criminal Practice and Procedure New South Wales vol. 1, para. 1066.

To the extent that Dietrich v R (1992) 177 CLR 292 extends the traditional grounds upon which a stay may be ordered to ensure that for reasons of fairness an unrepresented accused person charged with a serious offence is not required to undergo a trial, that authority does not assist the appellant in this case; nothing in the record suggests that this trial was in any way unfairly conducted.  One is left to speculate as to what if any evidence might be given by Sawyer if his attendance at court were procured.

On the facts of this case there is no suggestion of any abuse of Court process.  There is no suggestion that the Crown or members of the police force are in any way responsible for difficulties that the appellant had in effecting service of a subpoena upon Sawyer or in any way responsible for the inability of the appellant to locate him ‑ apart I suppose from the effect of the 13 warrants issued for his arrest in Queensland shortly after mid-1993.  The warrants that have issued for his apprehension to meet criminal charges in New South Wales may also explain the difficulty in locating him.

In this case the appellant contends that in the absence of any suggestion of an abuse of process his trial ought to have been stayed because of his inability to locate and procure the attendance of a witness to give evidence upon it.  On the material before the learned trial judge there was no indication as to when if ever Sawyer may have been located so that his attendance at court could be procured.

A somewhat similar point was considered by the Court of Criminal Appeal in New South Wales in R v Goldburg, No.60607 of 1992, delivered on 23 February 1993 (unreported).

In that case the applicant for a stay was charged with breaking, entering and stealing.  He served a notice of alibi defence indicating that he proposed to call evidence  which if accepted would show that he could not have committed the offence.  At the time of the application for stay the relevant witness was not medically able to give evidence.

In dismissing the appeal against refusal of the stay, judgment of the Court  comprising Gleeson CJ, Mahoney JA and Abadee J was delivered by Mahoney JA, in the course of which he observed:

"I shall assume without formally deciding or at least without formally marking out the boundaries of the principle, that a stay of proceedings can be granted if it appears to the court that the accused will not have a fair trial, whatever be the reason, whether that reason involves delay or not and whether the reason involves default by one of the parties or not. ...

Assuming that to be so, the question is whether, upon the basis of the facts advanced in the application, the learned judge could or should have granted a stay.  The beginning and end of the application lies in this, that whenever the event occurred, an important witness in support of the alibi defence will not be available to give evidence at the trial.  ...  This will, I shall assume, diminish his chances of succeeding upon the alibi defence.  But the question is whether, accepting that to be true for the purposes of this argument, that would or could warrant the learned judge granting a stay of proceedings.

I have significant doubts whether that fact alone could or would justify the exercise of discretion to stay proceedings.  The mere fact that a witness who would otherwise have been available has died or otherwise become unavailable does not as such warrant the granting of a stay of proceedings.  At least that is the provisional view which I take in relation to the matter.

I do not mean to say that there may not be circumstances in which the absence of a witness may, because of the peculiar nature of the circumstances, provide the basis for a stay.  It would be, I think, imprudent to attempt to rule out the possibility of such a case.  But looking at the circumstances of the present case as they have been presented to the judge and to this Court, I have significant doubts as to whether it would be open to the judge to exercise his discretion to grant a stay merely on that basis.

...

In my opinion, if the matter came before this Court to exercise discretion on the basis of what was before the judge, I would be of the clear opinion the order for stay should not be granted.  ... ".

No authority has been advanced on behalf of the appellant to support his ground of appeal.

The only authority I have discovered is R v Goldburg (supra).  I would with respect adopt the same approach as that adopted by the New South Wales Court of Appeal in that case.  While there may be exceptional circumstances in which absence of a witness not attributable to either party to the proceedings can justify a stay rather than merely an adjournment, without the necessity of showing any abuse of process of the sort to which the cases relating to stay advert, no authorities were cited to support the existence of such a power.  Assuming however that in exceptional circumstances such a power to stay a trial does exist, the circumstances of this case in my view did not justify the learned trial judge staying the trial. 

Had he been asked to adjourn the trial upon the facts he may well have been justified in refusing a further adjournment.  However he was not asked to further adjourn the trial and it is unnecessary to give consideration to that matter.

I would dismiss the appeal against conviction.

The appellant also seeks leave to appeal against sentence.  In imposing sentence the learned sentencing judge stressed the need for deterrence.  He observed that it was in the interests of the community as a whole and in the interests of honest members of the police force that a condign punishment be imposed for the offence.

The appellant had been a very good police officer.  He had received a citation in respect of the performance of his duty in connection with an armed robbery offence.  He had had difficulties in his marriage and had indeed suffered a nervous breakdown.  He had by reason of the offence lost a superannuation entitlement in the sum of $125,000.

Counsel for the appellant sought a suspended sentence.  However his Honour came to the conclusion that a custodial sentence was required.  He imposed a sentence of imprisonment for a period of 18 months ordering that it be suspended after six months for a period of two years.

In this case the appellant in fact served six weeks of the imprisonment imposed upon him before he obtained bail for reasons unnecessary to canvass pending the outcome of his appeal.  In effect then the appellant has served six weeks of the sentence imposed.  If the sentence stands he will be required to serve a further four and a half months imprisonment before the balance of the 18 months' sentence is suspended.

The matter is really one of impression.  There are not many authorities, fortunately, relating to offences of this kind.  Although the appellant contends for a wholly suspended sentence - or at least one suspended after six weeks (the period served before he was released on bail) instead of after six months, the question is whether the sentence imposed was manifestly excessive.

I am unpersuaded that it was manifestly excessive.  Indeed had the sentence been wholly suspended it is my view that insufficient weight would have been given to the aspect of deterrence of offences of this kind.

I would refuse the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 9 May 1997

I have read the reasons for decision of Ambrose J and agree with his Honour that the appeal against conviction ought to be dismissed.  It was, in my view, appropriate that the learned trial judge dealt with the question of the availability of Sawyer when the matter first came before him by granting the adjournment which he did rather than by way of a stay for a particular period.

As Ambrose J has identified, the issue is, whether a miscarriage of justice was caused by the refusal of the learned trial judge to stay proceedings when the matter came before him the second time until the attendance of Sawyer could be procured.  Had the prosecuting authorities moved more promptly in charging and bringing the appellant to trial Sawyer may have been available.  These events occurred in December 1992 and the charge was not listed for hearing until September 1996.  That delay although regrettable is far from an exceptional circumstance which the authorities require before a stay may be granted, Jago v. District Court (NSW) (1989) 168 CLR 23.  The decision not to seek extradition of Sawyer from New South Wales for budgetary reasons is not open to attack.  Sawyer was wanted on warrants both in Queensland and New South Wales and was not making himself available.  I agree with Ambrose J that no circumstances have been raised pertaining to the absence of Sawyer which are exceptional so as to call for what would in effect be a permanent stay of the indictment.

Whether the trial judge ought to have indicated that he wished to have the Registrar of the District Court arrange to subpoena Sawyer to attend and to adjourn the trial until that occurred was much canvassed on appeal.  The learned trial judge was not asked to do so.  I would agree with Ambrose J that in Australia exceptional circumstances must be present before that would occur.  A different situation prevails where a court seeks a pre-sentence report and calls the maker of the report should the prosecution or defence wish to cross-examine that person, ss. 201, 202 of the Corrective Services Act 1988.  The Juvenile Justice Act 1992 in s. 111 appears to proceed on this basis.

I agree that the application for leave to appeal against sentence should be refused.  Notwithstanding all the positive aspects of the applicant's background this is an offence where deterrence is of great importance and the learned sentencing judge correctly imposed a sentence some part of which was to be spent in actual custody.  Setting this at 6 months was not manifestly excessive.

I would refuse the application for leave to appeal against sentence.