R v KM[2016] QDC 150

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to s 590AA of the Criminal Code 1899 (Q) to stay the prosecution brought against the defendant.

Charges

2. [2]
   The defendant is charged with the following counts involving his now seven year old stepdaughter:^[1]

Count 1

That on a date unknown between 1 January 2014 and 31 December 2014 at East Mackay in the State of Queensland he unlawfully and indecently dealt with EO, a child under the age of 16 and EO was under 12 years and EO was under his care for the time-being.

Count 2

That on a date unknown between 1 January 2014 and 31 December 2014 at East Mackay in the State of Queensland KM unlawfully and indecently dealt with EO, a child under the age of 16 years and EO was under 12 years and he had EO under his care for the time-being.

Count 3

That on a date unknown between 1 January 2014 and 31 December 2014 at East Mackay in the State of Queensland KM unlawfully procured EO a child under the age of 16 years to commit an indecent act and she was under 12 years and she was under his care.

Evidence

3. [3]
   The complainant’s mother BW has provided a statement dated 21 January 2015. She was in a relationship with the defendant. In October 2012 they moved in together and EO lived with them and the defendant became EO’s stepfather. BW alleges that on or about 13 January 2015 EO alleged that she had seen the defendant’s “doodle” before on the occasion when “we were taking photographs.” The defendant was present during part of this conversation and EO started becoming upset. She later alleged that she had seen “daddy’s penis” and daddy asked her to put her face near it and smile when he took a photo and he moved and accidently touched her face. She also alleged that he opened up her vagina and took photos and said he would delete them so Mummy would not see them. The defendant was confronted by BW who denied the allegations. BW demanded to see the defendant’s phone. He gave it to her. She went through all the photos and videos but there was nothing untoward regarding the children.

4. [4]
   A section 93A Statement was taken from EO on 21 January 2015. The 93A Statement proceeded over about 20 pages to start with. The disclosures then came after a leading question by the police officer who asked:

“Officer: I heard Daddy showed you something at home.

EO:  Mmm.

Officer:  Did Daddy show you something at home?

EO:  No. What was that?  I forgot. I know what – what did he show me again?

Officer:  Well that’s what I want to ask you. I want to check to see if you can remember.

EO:  Um.

Officer:  Can you remember him ever – Daddy showing you any of the thing?

EO:    Well, I didn’t say this, but one thing, he was showing me beetle and he was shaking the beetle a little…

Officer:  I heard Daddy took some pictures of you. Did Daddy take some pictures of you?

EO:  Mmm, ah, like me being silly.

Officer:  Huh?

EO:  Me being silly.

Officer:  He took photos of you being silly?

EO:  Um.

Officer:  Can you remember Daddy taking any photos of you?

EO:  Yeah.

Officer:  What were they of?

EO:  Um [indistinct].

Officer:  Sorry?

EO:  Down – down here.

Officer:  Okay, what do you call that area?

EO:  Private.

Officer:  Your privates. Tell me about.

EO:  We were just mucking around.

Officer:  Tell me about – sorry?

EO:  We were only mucking around.

Officer: OK.

EO:  You’re not going to tell the police on me are you?

Officer:  Tell me everything about Daddy taking photographs of your privates and start at the beginning.

EO:  Um ah, he didn’t really hurt feelings. We were only playing and um, yeah, cos, um - and we, um, have fun and we were laughing [indistinct].

Officer:  Tell me about – tell me about what happened when daddy took photos of your privates?

EO:  Um, he deleted them.

Officer:  How do you know that?

EO:  Because he told me.

Officer:  OK. Tell me about how he took photos of your privates.

EO:  Um, oh, I don’t [indistinct].

Officer:  How did Daddy take a photo of you?

EO:  Well.

Officer: What did he use to take the photo?

EO:  We pulled my - he used his phone and, um, he pulled my - we pulled our pants down and um and, um, and we, um, were taking photos of those privates, of our privates.^[2]…

Officer:  Now you said ‘we took our pants down’?

EO:  Mmm.

Officer:  Is that right?

EO:  We pulled our pants down, yes.

Officer:  Yep. And you said that Daddy took a photo with his phone?

Answer:  Yeah.

Officer:  What did he take a photo of?

EO:  Our - um our vagina and our bum.

Officer:  So he took a photo of – sorry, your vagina?

EO:  Mmm-hmm.

Officer:  And your bum.

EO:  Mmm-hmm.

Officer:  OK. Did he take a photo of anything else?

EO:  Um, well of his too.

Officer:  He took a photo of - what did he take a photo of?

EO:  OK. Um it was me and I, um, took my tongue out and we were going to take a photo of me. Um um just putting my tongue near his um, penis, and I said I don’t actually want to put my tongue on his penis, but I moved a bit too close and -

Officer:  Mmm.

EO:  I touched it. Yuck, that’s where his pee comes out of. That’s gross.”^[3]

She later alleged that photos were taken on his phone of her privates.^[4]She then said the defendant told her that he had deleted these photographs.^[5]She gave further details at pp 48-50.

5. [5]
   The s 21AK hearing took place on 11 February 2016. She said when asked if she had told the police the truth that “I can’t remember if a lot of it happened…”^[6]EO persisted with her allegation in evidence-in-chief that the defendant took photos of both of their private parts.^[7]

6. [6]
   In cross-examination she conceded that the photo the defendant deleted was her doing a rude sign and she could not remember if he had told her he had deleted any other photos.^[8]She was asked:

“Question: Well let me ask you this are sure that your Dad took a photo of your bum?

Answer:  Well I think he did, but I just I can’t remember…

Question:  I want to ask you now are you sure that your Dad ever took a photo of your vagina?

Answer:  Yes he did.

Question:  But in the same way as the thing with your bum you are sure it happened but you can’t actually remember it can you?

Answer:  No I can’t remember.”^[9]

7. [7]
   She later alleged “it happened with his penis” but she didn’t know if she had a clear memory of that actually happening.^[10]She conceded that she had seen rude photos of grown-ups.^[11]She later conceded she was not sure that it happened that her tongue touched his penis.^[12]She was not sure that her dad pulled her bum cheeks apart.^[13]She said that she was very nervous in her evidence.^[14]She said she never saw any photos of her vagina, her bottom and of her Dad’s penis.^[15]She saw photos of naked ladies on her mum’s phone.^[16]

8. [8]
   At the conclusion of the pre-recording the Court was informed by the prosecutor that the police had seized the defendant’s phone and an officer (who had not provided a statement) was unable to locate any images which might be considered child exploitation material.^[17]There was no suggestion at that point that the phone forensically examined and the analysis had been lost.

9. [9]
   The case came on for mention in the Mackay sittings commencing 28 March 2016. There was a mention on 29 March 2016 and the prosecution was asked whether the phone had been forensically examined. The prosecution agreed to an adjournment to make enquiries in this regard.

10. [10]
    The matter was mentioned again on 7 April 2016. The Court was advised that the requisition had not been completed. The matter was listed for a stay application on 15 April 2016.

11. [11]
    Officer Ramsay in his statement dated 30 March 2015 in paragraph 12 states:

“[On 27 January 2015] I then gave [KM’s] mobile phone to Plain Clothes Constable Vicky Steindl of Mackay District Property Task Force for the purpose of having the phones forensically examined using Cellebrite. I am aware that PC Steindl examined [KM’s] phone, but was unable to locate any images that may be considered to be child exploitation material.”

12. [12]
    Officer Vicky Steindl in an affidavit dated 13 April 2015 alleges that on 28 January 2015 she conducted a download of a mobile phone for Officer Ramsay and provided him a copy of these downloads at the time. There is no reference to this in Officer Ramsay’s first statement. She further says that on 16 February 2016 Officer Ramsay contacted her and requested that she locate the Cellebrite download for him. She alleges that she has been unable to locate the download using the Cellebrite and Lantern system. Both cannot be located.

13. [13]
    In an affidavit sworn 12 April 2016, Officer Ramsay alleges that on 16February 2016 he received a requisition from the ODPP requesting the Cellebrite report. He alleges that he analysed the contents from the phone but did not locate any images of the child either partially clothed or naked. There were a number of images but none of these constituted a criminal offence. The phone was returned to the accused on 6 February 2015.

14. [14]
    On 16 February 2016 Officer Ramsay contacted Officer Steindl and requested she locate the Cellebrite file as he was not working in the Mackay station. He alleges that on 11March 2016 he sent another email to her on 14 March 2016. He says that she told him she had looked for the examination download but had not been able to identify the location of the file.

15. [15]
    He alleges that on 11 April 2016 he reviewed the hard disks drive for both the Cellebrite and Lantern device which are both housed in Mackay Station and cannot locate these files. He swears:

“I do not know what happened to the file and am at a loss to explain the subsequent loss of the Cellebrite examination. I am unable to complete another examination/download of the accused mobile phone as it was returned to him shortly after he was charged and I am no longer in possession of the phone.”

16. [16]
    He alleges that on 12 April 2016 he spoke to Sergeant Foster of the Electronic Evidence Evaluation Unit regarding the possibility of examining the HDD to recover the file. Foster advised that due to the time lapse between the file being created and at the date of the affidavit it is most likely the file has been overwritten and the chances of recovering the file were nearly impossible.

17. [17]
    There is an affidavit from Senior Sergeant Peter Kingsley of the Electronic Examination Unit in Brisbane^[18]. He alleges in a general sense that the Cellebrite UFED Logical may not be fully compatible with the make and model of smart phone being analysed and may be limited in its ability to recover deleted material. A file may have been deleted and data overwritten. The file may not have been stored locally and may have been stored on a cloud or it may have been encrypted. He says at para 9:

“Without direct knowledge of how the file was saved, used, stored and how the device was configured at the time it is impossible to determine why a particular file was not found.”

18. [18]
    Mr Kingsley in a second affidavit sworn 19 April 2016^[19]says that:

1. (a)
   The HTC Desire One phone is an Android device.

2. (b)
   The data can be acquired manually, through logical extraction, through physical acquisition or chip off.

3. (c)
   A Lantern examination is limited.

4. (d)
   The HTC Desire One could be analysed via Cellebrite UFED Physical analyser.

19. [19]
    Duane Anthony Norman states in a witness statement dated 27 May 2016 that he is a Constable of Police based at the Mackay Police Station and holds the position of District Electronic Evidence Technician Capricornia. He has been trained in forensic examinations of electronic evidence and has over 20 years’ experience in operating and maintaining computers and computer networks. On 24 May 2016 he examined an Apple MacBook laptop belonging to the Child Protection Investigation Unit at Mackay District Police Headquarters. This laptop is used to conduct Forensic Data Extractions from mobile devices for evidentiary purposes. The Lantern 4 Forensics software is used to conduct these extractions. Mr Norman states he accessed the log files for Lantern 4 Forensics on this laptop and that this software was used on 28January 2016 a total of two times, and on 30 January 2016 a total of two times.

20. [20]
    The Crown provided Mr Norman’s statement along with photographs of his search of the Lantern Forensic Software log files and seeks to rely on the evidence that the software was operated on these two dates as evidence that Ms Steindl did perform the analysis of the defendant’s phone. However, Ms Steindl’s affidavit states that she performed the analysis on 28 January in 2015, not 2016. By 28 January 2016, the defendant’s phone had been returned to him and disposed of.

Oral evidence

21. [21]
    Officer Ramsay gave evidence that he was the investigating officer in this matter.^[20]He was unsure if the search of the mobile phone in question was a Cellebrite search or a Lantern search.^[21]He believed he was provided with an electronic copy of the search but could not recall how it was provided to him.^[22]He said it was an oversight that he did not disclose the existence of this download in his statement.^[23]He alleged that he had asked Officer Steindl to do an analysis of the mobile telephone. He was not sure what software was used. He accepted he had not complied with the operational manual with respect to handling the exhibit.^[24]He accepted there was no notation in the QPRIME report of the forensic analysis.^[25]He accepted he failed in his responsibility for the safe keeping of data.^[26]

22. [22]
    He was not sure if the download was on a hard drive.^[27]He said that he should have burnt it on to a CD. He said that a communal hard drive was used and the download appears to have been deleted off the hard drive. He said he analysed the contents of it and was unable to locate any relevant images.^[28]He alleged that he worded paragraph 12 of his statement poorly. He agreed the property was not lodged at a property point, and the data from the phone was not placed on any property point, nor physically burnt onto a CD.^[29]He accepted the best practice was to burn such items onto a CD.^[30]He accepted there was no disclosure of the loss of these documents until the matter was listed for the stay argument.^[31]He accepted his recollection was hazy and he accepted he had breached the Police manual by not placing the property in a property point or on to an exhibit register.^[32]He accepted the phone was seized on the 27 January 2015 and returned to the defendant on 6 February 2015, so he had the phone for some days. He alleged that Officer Steindl gave the phone back to him the same day as he provided it to her. He accepted that s 688 of the Police Powers and Responsibilities Actrequired him to give the property to an appropriate property officer, which he never did.^[33]He was not aware, it seems, of the “Seizing Computers and Other Electronic Best Practice Guide”.^[34]He agreed that the existence of the download was not included in the brief of evidence.^[35]

23. [23]
    Officer Steindl in her evidence said that she did not examine the data looking for images.^[36]She alleged that she did the download by plugging in the phone. Her usual practice is to place the downloads on a USB and give them to the officer requesting them and she expects that she did this on this occasion.^[37]She also saved the Cellebrite download and lantern download to a hard drive.^[38]She doesn’t actually recall doing the downloads in this case, although she had a diary note indicating she had done them.^[39]She considered, it seems, that two sources have been lost, namely the USB and the two downloads, which was unusual.^[40]She alleged that she could not see any evidence on the computer system that the downloads had been done.^[41]She said that the report is generated by the program.^[42]She conceded that there had not been a thorough examination of the computer system by experts from Police Headquarters.^[43]

24. [24]
    Mr Kingsley, in oral evidence, said that he was a Senior Sergeant from the electronic evidence examination unit. He said that it is possible that files can be deleted and overwritten but generally they can be recovered.^[44]The time is not as relevant as the usage of the device.^[45]If overwritten the file cannot be recovered.^[46]He said that an expert from Brisbane could examine the relevant computer to find out what records were kept relative to these downloads.^[47]

25. [25]
    In cross-examination, he said that Cellebrite has two main products; UFED logical and physical. The physical analysis is used in Brisbane and is more advanced in the logical analysis.^[48]The logical analysis though, can recover deleted material, provided it is in logical file space.^[49]The physical examination can go deeper.^[50]The HTC phone in this instance is an android phone and is far more supported by these tools.^[51]Lantern is not the appropriate search tool, but Cellebrite is. Lantern though, does do a logical extraction and is similar to Cellebrite.

26. [26]
    He accepted in cross examination that 2.6.10 of the Police Operations Manual required that the approved products should be used by persons authorised to do so.^[52]He also said that the “seizure of electronic evidence best practice guide” is on the Police Intranet.^[53]Exhibit 6, Extracts from the Police Operation Manual, were tendered. He said that to be authorised to carry out a Cellebrite examination one completes a training course.

27. [27]
    He said that if such an examination is conducted there should be an entry on the forensic register, case notes are kept and there would be reports and entries on the QPRIME system.^[54]I note in this case that no such entries were made. He said, also, that if one uses the Lantern or Cellebrite download there would be log records kept on the computer.^[55]If the phone was not close to having full files there was a good chance that deleted items would be available on a physical extraction.^[56]A logical extraction would provide a history of usage of the telephone. Photographs are kept in an index system and one can tell if photographs are missing and further the date, times and GPS details for particular photographs.^[57]Extracting these items is not onerous, one can conclude whether any images have been deleted.^[58]

28. [28]
    In light of the matters raised by Mr Kingsley I gave the Crown the opportunity to conduct a more detailed search of the Mackay records. This is why Mr Norman’s statement was produced.

Defendant’s evidence

29. [29]
    The defendant has filed an affidavit^[59]. He swears that he provided police the PIN code for the phone. He gave the officer the phone, the SD card and sim card. He was told that Police would keep the phone so they could complete the investigation. He later collected the phone on 6 February 2015. He continued to use the phone for four to five months. The phone then started playing up. He purchased an Apple iPhone. He disposed of the old phone, believing Police had fully examined it.

30. [30]
    The defendant affirms that his use of the phone was unlikely to have caused any photos he took and deleted to be overwritten, as he never came close to exceeding the storage limitation and never saved photos to a network location such as a ‘cloud’. The defence submits that there is nothing to suggest the phone’s memory would have been overwritten so as to cause any deleted photos to not be located through a logical analysis. As the Crown did not attempt to challenge the defendant on this issue, the defence submits that the defendant’s evidence on this issue should be accepted. Therefore a logical analysis of the phone appears likely to have indicated the existence or lack thereof of the alleged indecent photos. The results of such a search therefore have the potential to be highly probative.

31. [31]
    I consider this evidence is important. It tends to prove that it is unlikely that deleted images were not recoverable in light of Senior Sergeant Kingsley’s evidence.

32. [32]
    I also note in unchallenged evidence the defendant said he not aware of what “purging” is in relation to a phone and had never installed security software on the phone, not encrypted any data on the phone, in fact, he is not sure how this could be done.^[60]

Defendant’s record of interview

33. [33]
    The defendant was interviewed on 27 January 2015 at the Mackay Police Station.^[61]He told the Police of his mobile service and of his telephone number.^[62]The allegation was put to him that he spread the lips of the complaint’s vagina apart and took a photograph of the vagina; spread the cheeks of her backside apart and took a photograph of her bum, and then had her head close to his penis and she touched his penis with her tongue.^[63]The defendant said there was absolutely no truth to any of these allegations. He denied ever touching her on the vagina.^[64]He denied ever touching her on the backside.^[65]He denied ever taking naked images of her. He admitted there were photos of her, him and his son mucking around in the lounge room, but they were not naked.^[66]

34. [34]
    One can therefore see that the defendant denied the existence of any indecent photographs and further said that any photographs would be innocent ones.

35. [35]
    The Police officer was put on notice immediately of the importance of the telephone and its contents.

Submissions of the parties

Defence submissions

36. [36]
    The defence submits^[67]that:

1. (a)
   The acts constituting the allegations against the defendant are alleged to have been photographed on his phone.

2. (b)
   The effect of the child’s evidence is that she cannot independently recall the alleged events.

3. (c)
   In those circumstances the phone evidence becomes vital.

4. (d)
   The forensic analyses of the phone have been lost by the police which is unexplained.

5. (e)
   In the circumstances the defendant cannot receive a fair trial.

6. (f)
   The defendant seeks a permanent stay or alternatively a temporary stay until the evidence becomes available.

37. [37]
    The defence filed a further supplementary outline of submissions on 8 June 2016.^[68]The defence further submitted that:

1. (a)
   The case is unique in that both evidence and the opportunity to obtain evidence has been lost.

2. (b)
   The limited evidence which does exist results in an inherently unjust position for the defendant. The defendant has been faced with a choice resulting in inevitable disadvantage.

3. (c)
   If the Crown leads evidence that no photos were found on the defendant’s camera, this may be interpreted to support either party’s case theory, and some jurors may see it as corroboration of the complainant’s version of events.

4. (d)
   Only half of the story would be put before a jury if the matter proceeded to trial at this stage. The jury would be aware of the photos from the complainant’s evidence and may draw inferences.

5. (e)
   The lost evidence is probative in light of the complainant’s evidence that photos were taken and the defendant’s evidence that he did not delete photos from his phone.

6. (f)
   The Crown’s submission that there is no direct evidence of photographs being taken on the phone is incorrect as the complainant’s evidence clearly states that photographs were taken, and at no point did the Crown suggest otherwise to her. It would be unfair for them to suggest this now.

7. (g)
   There are no available measures to mitigate the prejudice to the defendant in this case.

8. (h)
   The lost evidence could exonerate or exculpate the defendant from the charges alleged, as there is a high possibility that if the phone had been properly analysed, it would have indicated whether any images had been deleted and would have allowed any deleted images to be recovered.

1. (i)
   The only way to ensure fairness is to have evidence available addressing whether the photos were ever taken, or whether they were taken and deleted. This is now an impossible factual issue to explore.

10. (j)
    Were it not for the way the case has been handled by the authorities there was a high likelihood of probative evidence on the issue.

10. (k)
    The defendant has had prejudice caused to him by the police failing to send the phone to Brisbane for a properly probative analysis; the police either not doing a logical analysis or alternatively losing the records of such an analysis; and a lack of proper disclosure, which would have allowed the defence to take appropriate steps to minimise the prejudice incurred.

Crown submissions

38. [38]
    The Crown submits that:^[69]

1. (a)
   Stays should only be granted in exceptional circumstances.

2. (b)
   The deficiency in the investigation here is not exceptional or extreme.

3. (c)
   The lack of forensic evidence is more prejudicial to the Crown.

4. (d)
   There is a public interest in the matter proceeding.

5. (e)
   The fact is no images were located and the Crown does not attempt to argue otherwise. 

39. [39]
    The Crown filed an additional outline of submissions on 31 May 2015^[70]. The Crown submitted that:

1. (a)
   The probative value of the lost evidence is in serious doubt.

2. (b)
   The lost evidence should be considered in the context of there being no direct evidence that images were taken on the phone.

3. (c)
   The Respondent does not accept that the police have acted to deliberately conceal this evidence, but rather indicates a lack of understanding as to best practice procedures and disclosure obligations.

4. (d)
   The lost evidence could not exonerate or exculpate the defendant from the allegations.

5. (e)
   The content of the lost report is evidenced by Senior Constable Ramsay’s evidence that no indecent images were found.

6. (f)
   Any prejudice caused to the defence by not being able to challenge Senior Constable Ramsay’s evidence on this point can be negatived by an order excluding the evidence about the content of the missing report or the examination of the phone from the trial.

7. (g)
   Although further analysis of the phone was possible, what would have been found is entirely speculative, and therefore this lost evidence neither supports nor undermines the Crown case and does not cause the trial to be unfair.

Issues arising from the material

40. [40]
    It is of concern that there was not full disclosure to the Court about the loss of the downloads at the mention on 7 April 2016. There clearly was not full disclosure in the statement of Officer Ramsay dated 30 March 2015.

41. [41]
    Further, there was no disclosure of the matter in the brief of evidence^[71]. This, in my view, is a clear breach of the disclosure provisions contained in the Code.^[72]

42. [42]
    It is my conclusion that it was only due to the matter being listed for a stay application that disclosure of the loss of this material was made. If the matter had not been listed for a stay application there are real doubts that the loss of this material would ever have been known to the defence.

43. [43]
    I also note that there appears no disclosure of Officer Steindl’s involvement in the QPrime report. There is also no disclosure of any forensic analysis in that report. I also note that the Police Operational Manual was not complied with in terms of the handling of the exhibit and the notation of matters in the QPrime report.^[73]

44. [44]
    There also appears to be the loss of four documents – the two downloads on the USB given by Officer Steindl to Officer Ramsay on or about 28 January 2015,^[74]and the two copies “kept” by Officer Steindl.^[75]This is highly unusual.

45. [45]
    There is no adequate explanation given as to why the two analyses of the phone have been lost.

46. [46]
    In this regard I note the following:

1. (a)
   There is no compliance with the Police manual with regard to the handling of the exhibit.^[76]

2. (b)
   There is no exhibit register relating to the phone or the downloads.

3. (c)
   The property was not given to an appropriate property officer.^[77]

4. (d)
   There is no written record of it being given to Officer Steindl.

5. (e)
   There is no forensic examination form.

6. (f)
   There is no entry in the crime report of Officer Steindl’s involvement.

7. (g)
   Two searches were lost by Officer Ramsay and two by Officer Steindl.

8. (h)
   Officer Ramsay’s statement makes no disclosure that the searches were done.

1. (i)
   The only time these searches were disclosed was after the matter was listed for a stay application.

47. [47]
    If some of the measures referred to above were adopted as required it is likely the material would not be lost.

48. [48]
    Further, the evidence of Mr Kingsley does not answer an important point here. With respect to this particular phone did the Cellebrite and/or Lantern analysis recover possible deleted images?

49. [49]
    In view of the loss of the material by the Police officers and the disposal of the phone (through no fault of the accused) it is impossible now to answer that question.

50. [50]
    I consider this seriously impacts upon the accused’s prospects of a fair trial. If the downloads had been retained and if they could be shown to have recovered deleted images on this telephone and there were no images as alleged by the complainant in light of the concessions made by the complainant in cross-examination, it may well have been the case the Crown would not proceed with the matter. At the least it would severely impact on the credibility of the complainant.

51. [51]
    So, in summary, this is a case where were I find there was material non-disclosure of information to the defence and the lost material potentially provides a complete defence to the charges.

52. [52]
    Indeed, if there had been disclosure earlier of the loss of the downloads, the defence may have conducted its own examination.

Principles relating to stays

53. [53]
    A court has control over its own processes including to prevent an abuse of process.^[78]

54. [54]
    A court should ensure it does not become an instrument of injustice.^[79]There is a public interest in requiring a court to ensure its processes are used fairly by the State and citizen alike^[80]. A failure by the courts to ensure this will lead to an erosion of public confidence in the courts because of concern the court’s processes may lend themselves to oppression and injustice^[81].

55. [55]
    In Jago v the District Court of New South Wales & Ors^[82]Mason CJ noted that the courts possess a power to stay criminal proceedings in order to prevent injustice to the accused.^[83]

56. [56]
    His Honour noted:

“In the safeguarding of the interests of the accused in the manner I have described the touchstone in every case is fairness… because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made. The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial…  At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused responsibility for asserting his rights and, of course, the prejudice suffered by the accused… [p 34]. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare… 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’.”^[84]

57. [57]
    In Williams v Spautz^[85]the majority noted “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.”

58. [58]
    In Barac v DPP; Barac v Stirling^[86]it was noted:

“In such a case, absent some real and incurable adverse effect upon the accused's prospects of a fair trial, a mere change of mind on the part of the prosecution is not, of itself, a sufficient basis for ordering a stay of proceedings.”

59. [59]
    There is no doubt that the Court would only be satisfied that the continuation of proceedings constitutes an abusive process in an exceptional or extreme case.^[87]

60. [60]
    Stays have been granted in cases where there has been a loss of evidence which impermissibly has impacted upon the fairness of the trial.

61. [61]
    In R v Reeves^[88]criminal charges have been laid against the applicant relating to his activities regarding a company. The charges were laid in March and April of 1991. In August 1991 the company wound down its operations and as a result of a need to reduce the volume of stored material there was a substantial culling of the company’s records. Gallop J granted a permanent stay of the proceedings. He held that the destruction of documents in that case created a fundamental defect so that it would not be possible for the applicant to receive a fair trial. His Honour found at pp 415-416 that there was nothing that a trial Judge could do on the conduct of the trial to relieve against its unfair consequences.

62. [62]
    In Duncombe-Wall v Police^[89]Lander J held that the magistrate at first instance ought to have stayed a prosecution against the appellant for threating to cause harm. Evidence had been given by the appellant’s former wife and son supporting the prosecution case. The appellant denied the allegations made. His Honour held at page 5:

“There was a significant dispute on the evidence about the circumstances giving rise to the telephone calls and who in fact called the emergency number. Whilst the question of the telephone calls was not central to the issue in the case it was a very important matter on the question of the credibility of the witnesses. The question of the credibility of the witnesses was a matter which had to be determined. The learned Magistrate was not entitled to reach a conclusion that the charge had been made out unless he was satisfied that the evidence of Mrs Duncombe-Wall and her son ought to be preferred to that of the appellant and further that he was satisfied beyond reasonable doubt, upon that evidence, that the charge been made out.”

63. [63]
    In this case the triple zero evidence had gone missing. Lander J held at page 6:

“In my opinion, although the 000 evidence were only to the question of credibility it was, in the circumstances of this case, important evidence. The evidence, if it had been called, had the potential to corroborate the appellant’s account of the telephone calls to the Police. If his evidence had been corroborated on that topic necessarily it meant that the evidence of his former wife and his son had to be rejected upon that topic.”

64. [64]
    Of importance, his Honour noted at page 8 that the appellant’s solicitor when first instructed had written to the Police Prosecutor asking for the Police to preserve the tape as to who dialled triple zero. Prosecution was put on notice that this evidence was important. The tape was reused thereby obliterating the record of the conversation. His Honour noted at page 10 that:

“A procedural order staying or dismissing an information as an abuse of the Court’s process will only be made where there is good and sufficient reason. Such an order is only made sparingly. A Court has jurisdiction to stay proceedings where the prosecution of the criminal proceeding will result in a trial which is unfair.”

65. [65]
    In Commonwealth Service Delivery Agency v Bourke^[90]the respondent had been charged with 70 counts of knowingly obtaining a benefit which was not payable contrary to the Social Security Act 1995. The respondent successfully applied for a permanent stay of all counts on the basis that relevant records, i.e. fortnightly forms which he had lodged, had been destroyed, thereby depriving him of a fair trial. Wicks J dismissed the appeal. At [14] his Honour noted:

“Duncombe-Wall is on all fours with this case. In essence what counsel for the prosecution put to me was that theirs is an overwhelming strong case because there is evidence, in addition to the fortnightly forms from which inferences may be drawn, that the respondent is guilty of knowingly receiving a benefit to which he was not entitled in whole or in part. The fortnightly forms were not the only evidence going to the respondent’s credibility, there was also the record of interview. However this submission misses the point. The fortnightly forms were the only evidence capable of corroborating the respondent’s version of events, and they are now gone forever.”

The appeal was dismissed.

66. [66]
    The Crown has relied on R v Edwards.^[91]In Edwards, the respondents had been charged with, in effect, recklessly operating an aircraft. Primary data had gone missing. The High Court set aside the stay. However, in that case the Court noted that the trial Judge misstated the relevant test, i.e. whether the loss of the primary data and delay could constitute unacceptable justice. The Court noted at [33] that the content of the lost data was unknown and it was not correct to characterise the loss as occasioning prejudice to the respondents. The Court noted that the lost evidence serves to neither undermine nor to support the Crown case. The Court noted that it was not the occasion to consider whether there may be circumstances where a stay may be given. The Court also noted the respondents did not give evidence.

67. [67]
    I consider Edwards to be a different case from the present. In the present matter there is actual prejudice to the defendant. He was not advised as to the loss of the searches here. If he had been advised he may well have undertaken his own analysis of the phone. Because of the loss the Crown is now in a position of being able to say that the images might have been deleted. This submission cannot be challenged by the Defence. Also, one must bear in mind in this case the photographs, if they existed, would definitely prove the Crown case. On the other hand, if they did not exist this would mean the Crown case would be mortally damaged.

68. [68]
    Also one must have regard to [26] of Edwards where the Court noted that the evidence may not have resolved the issues anyway.

69. [69]
    Of course each case depends upon its own facts.

Disposition

70. [70]
    It is my respectful view that this is a case where nothing can be done by a trial Judge to mitigate the effects of an unfair trial. The fact is that the loss of these records (through no fault of the defendant) means that clear evidence which could well have entirely exculpated the defendant from these charges is missing. If all images had been recovered in either of the searches and there was no image consistent with that alleged by the complaint, not only would there be very good prospects of findings of not guilty but it may well be a case where the Crown would not proceed further with the allegations in light of the cross examination at the s 21AK hearing.

71. [71]
    Over and beyond this there was non-disclosure of this point by the Police until such time as this matter was listed for a stay. If the matter had not been listed one wonders whether the loss of these records would have come to light. The non-disclosure has led to a situation where the defendant cannot have the phone forensically examined himself.

72. [72]
    I think it very important in a case such as this that one have regard to the fact that sexual offences have the real potential to inflame prejudice.^[92]No direction given by trial Judge can overcome the unfairness here. It is not to the point that a dangerous to convict direction could be given. That still leaves the significant possibility that the jury could convict on the complainant’s evidence alone despite taking into account such direction.

73. [73]
    In all of the circumstances I consider this to be an exceptional case in light of the fact that the allegations by the complainant are completely uncorroborated, in light of the state of her evidence, and in light of the importance of the missing evidence. This in combination has deprived the defendant of a fair trial. It is an exceptional case. Very rarely will the evidence of all counts such as this be caught on camera. The loss of evidence of what was on the camera is crucial here.

74. [74]
    In light of the loss of the records (which is unlikely to have occurred if the Police complied with their internal procedures) I consider it would be an abuse of process to allow the jury to think that in fact deleted images supporting the complainant’s allegations were in fact not recovered during the Police examination of the phone. This potentially impermissibly puts the Crown in a far better position in this trial than what might otherwise be the case.

75. [75]
    In all of the circumstances I find that the defendant cannot receive a fair trial. I find this is an exceptional case. There is no relief the Court can grant other than a stay to remedy the prejudice.

Order

76. [76]
    I order the prosecution of the defendant be stayed.