R v Andrews[2016] QDCPR 5

DISTRICT COURT OF QUEENSLAND

Introduction

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

Charges

2. [2]
   The defendant is charged with four counts of using a carriage service to transmit indecent communication to a person under 16 years of age on 1 and 2 June 2015 and 1 July 2015 contrary to section 474.27A(1) of the Criminal Code 1995 (Cth). 

Facts

3. [3]
   The images the subject of the charges are of an erect penis and appear to be images taken on a telephone. The complainant’s mobile telephone indicates the images came from service 0458 777 962. It is admitted that the defendant had this phone number registered in his name. It is not disputed that the images came from his telephone. It is also not disputed that the images were transmitted at 3:15pm and 9:22pm on 1 June 2015; 9:27pm on 2 June 2015 and 8:28pm on 1 July 2015.

4. [4]
   In her 93A statement dated 4 July 2015 the complainant (aged 14 years) said that the images came from a random number. She said though that she was a Facebook friend of the person with that phone number. She was friends with 3000 people.

5. [5]
   In a second 93A statement dated 17 August 2015 the complainant told the police she did not know the defendant but that her brother did. She conducted a search of her Facebook friends and found the defendant and blocked him.

6. [6]
   The complainant’s mother in her statement dated 14 July 2015 says she called the number on 3 June 2015 after seeing the photos and said “stop sending images of your cock to my 14 year old daughter” but the male at the other end hung up.

7. [7]
   The telephone was seized by police on 12 August 2015 pursuant to a search warrant.

8. [8]
   The defendant underwent a record of interview on 12 August 2015. He told the police that he knew nothing about the images which had been sent. He told them, at the time of the alleged offences, a large number of other people had used his telephone. Indeed he told the police the telephone was communally used for the ordering of drugs and it was said for persons using it for that purpose to delete evidence of their use of the phone as he did.

9. [9]
   He told the police he had the service for 3 months. He also told them that his mates were normally on the phone for a few minutes and they would have it for half an hour to 1 hour at a maximum. He admitted sending photos of his private parts to his ex-girlfriend but on a different phone.

10. [10]
    Senior Constable Benjamin Ramsay, the investigating officer, in an affidavit says that he seized the LG mobile phone from the defendant during the execution of a search warrant on 24 July 2015^[1].  He reviewed the contents of the phone and saw there was very little data stored on the phone – only 20-30 photographs in the gallery, less than 10 text messages which were 2-3 days old and only a few phone calls made within 2-3 days prior to the search warrant.  He also says that he spoke to the defendant during a recorded interview, who advised him that the phone was only three months old, and on occasions he allowed associates of his to use the phone to source drugs from unknown people.  He advised that following these calls it was commonplace for call history and data to be deleted from the phone which was consistent with his observations of the phone.  Given these circumstances he decided the phone had no evidentiary value and decided not to have it forensically examined or to organise another person to examine it. 

11. [11]
    On 27 August 2016 the defendant attended the Mackay police station and provided Officer Ramsay with the names of his associates who had used the phone and advised him he did not wish to have the phone returned. The defendant signed his official police notebook stating he wished to relinquish ownership of the phone. At a later date the officer arranged to have the phone disposed of pursuant to s 720 and 721 of the Police Powers and Responsibilities Act 2000 (Qld).  The phone was disposed of on 19 January 2016. 

12. [12]
    The defendant has sworn an affidavit as well. He says in his affidavit that he told the police when he spoke to them that he did not send the images of the penis and in fact has never sent a text message to the complainant at all. He confirms what he told the police in the record of interviews. He says that when he first spoke to his barrister about the matter (26 October 2016) he advised him that the phone in question was being used by a lot of people at the time and he told lawyers there should be text messages signed with the names of other people which would demonstrate others were sending text messages from his phone. His barrister advised him it was possible to have an analysis done on the phone to demonstrate that others were using the phone which might include deleted data. He does recall a conversation with Officer Ramsay and confirms that he signed Officer Ramsay’s notebook but disputes that he said he did not want his phone back. He alleges he did not authorise its destruction and if it were possible he would want an analysis conducted of the telephone.

Submissions by the defendant

13. [13]
    The defendant submits that the destruction of the telephone has created a situation where he is deprived of properly advancing a case consistent with his innocence. It is submitted that the phone was illegally destroyed and the defendant has lost the opportunity of having a fair trial. It is submitted that the Court process would be brought into disrepute if the prosecution was to continue^[2] regardless of whether a fair trial may be had.

Respondent’s submissions

14. [14]
    The respondent on the other hand submits that the stay should only be granted in exceptional circumstances. Even though the phone is lost here the trial will not be an unfair one as the defendant will be entitled to put his case before the jury for consideration.

15. [15]
    It says that the defence case is implausible, bearing in mind the evidence the defendant and the complainant were Facebook friends.

16. [16]
    Further it is submitted that it is speculative to conclude that an examination of the phone would have revealed text messages which would have identified another party particularly bearing in mind the texts apparently related to drugs.

17. [17]
    Even of the phone was illegally destroyed does not affect the cogency of the evidence of the case against the defendant.

18. [18]
    I note that the crown has undertaken to play the record of interview as part of its case.

Disposition

19. [19]
    A court has control over its own processes including to prevent an abuse of process.^[3]  For this purpose, a court has the power to permanently stay a prosecution.^[4]  However a permanent stay should only be ordered in an extreme case and to justify the 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”.^[5] 

20. [20]
    In Williams v Spautz^[6] the majority noted “the court must be satisfied that there are no other available needs, such as directions to be given by the trial judge, of bringing about a fair trial.” 

21. [21]
    There is no doubt that the court would only be satisfied that the continuation of proceedings constitutes an abuse of process in an exceptional or extreme case.^[7] 

22. [22]
    In R v Edwards^[8] the respondents had been charged with in effect recklessly operating aircraft.  Primary data had gone missing.  The High Court set aside the stay.  In that case the trial judge had misstated the relevant test.  The court noted at [33] that the content of the lost evidence was unknown and it was not correct to characterise the loss as occasioning prejudice to the respondent.  The court noted that the lost evidence served neither to undermine nor support the Crown case.

23. [23]
    I consider this case is like the case of Edwards. The loss of the phone in this case does not prevent the defendant from putting forward his case that others had used the phone.  It is doubtful that evidence could have been obtained one way or the other proving that others had sent these images.  Indeed the images received by the complainant did not include the name of the sender.  Therefore an examination of the phone would have been unlikely to reveal the identity of the person who sent the image.  In those circumstances it seems to me that even with a forensic examination of the telephone, the court, the defendant and the Crown would be left in the same position as it is now.  Also the defence argument presupposes deleted texts would have been able to be recovered- there is no evidence of that before the court.

24. [24]
    The applicant relies on the case of R v KM .^[9]  I consider KM to be a different case.  There was no suggestion in that case that others had used the phone – only the defendant had and there was a real possibility that deleted images could have been recovered crucial to the credibility of the complainant. In the instant case it is entirely speculative and indeed unlikely that texts could be recovered proving innocence. 

25. [25]
    The defendant also relies on the decision of Commonwealth Service Delivery Agency v Bourke^[10] again I do not consider that the defendant here has been “denied the opportunity to cast doubt on the…inferences to be drawn from the prosecution evidence”.  This is particularly so given the undertaking to play the record of interview.

26. [26]
    I do not consider that there is a situation here where the defendant is deprived of properly advancing a contesting hypothesis consistent with innocence.^[11] The defendant is not deprived of running his defence here.

27. [27]
    I also note that no notice of alibi has been served in circumstances where the defence is aware of the specific times and dates of the messages.

28. [28]
    Also in this case the decision to have the phone analysed was not made until very recently. The defendant was charged in August 2015 and has been represented for some time.

29. [29]
    I do not consider this case is so exceptional as to justify a permanent stay.

30. [30]
    As to the illegality question I consider that not to be a very relevant consideration here. On the evidence the defendant relinquished ownership of the phone. The police then had the right to dispose of it as ownership had passed. However, even if some illegality surrounded the disposal, I do not see how that affects the cogency of the evidence and how that impacts of the fairness of the trial for the reasons given earlier.

Order

31. [31]
    In the circumstances for the reasons I have given the application is dismissed.