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Court of Criminal Appeal 11 June 1999

R v Carver

[1999] NSWCCA 135

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE

Citation: R v Carver [1999] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 11 June 1999
Judge(s): Ireland J, Dunford J, Bell J (Bell J delivering the leading judgment)

Background

The accused faced ten counts of fraud in the Sydney District Court, relating to sums of money allegedly obtained by deception from two individuals in connection with a proposed property purchase and related transactions dating back to 1988. The accused was to stand trial on an indictment alleging, among other things, that he had deceived the complainants about deposit amounts, stamp duty obligations, and the purpose of other payments.

In June 1992, police seized a quantity of documents from the accused's premises pursuant to a search warrant. That warrant was subsequently quashed by the Court of Criminal Appeal in March 1998. The accused contended that some of those documents, including vouchers and a signed contract relevant to his defence, had not been returned and could not be located.

Days before his trial was listed, the accused applied to the District Court for a permanent stay of the indictment, arguing that the loss of those documents meant he could not receive a fair trial. The District Court judge refused the stay, and the accused sought leave to appeal against that refusal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the loss of documents seized under a subsequently quashed search warrant was sufficient to deprive the accused of a fair trial so as to justify a permanent stay of proceedings
  • Whether the trial judge erred in refusing a permanent stay on the ground that missing documents would have supported the defence case
  • Whether the principle that an accused has been deprived of evidence capable of raising a reasonable doubt must, as a matter of law, lead to a permanent stay

Decision

Bell J (with whom Ireland J and Dunford J agreed) refused leave to appeal. Her Honour found that the accused had not demonstrated sufficient grounds to doubt the correctness of Judge Davidson's conclusion. Accordingly, the application for leave to appeal was refused.

The Court accepted that, for the purposes of argument, the missing documents may have assisted the accused's case. However, this was not enough to establish that a permanent stay was warranted. The decision to grant a stay requires a weighing of multiple considerations, including the community's interest in having persons accused of serious offences face trial. The availability of trial directions and judicial discretions in managing missing evidence are also relevant factors.

The Court rejected the accused's submission that, whenever lost evidence is capable of creating a reasonable doubt, a stay must follow. That proposition was found to overlook the balancing exercise required by the High Court's decisions in Jago v District Court NSW (1989) 168 CLR 23 and The Queen v Glennon (1992) 173 CLR 592. The Court noted that a permanent stay is an extreme remedy, warranted only in a necessarily small class of cases, and nothing in this application brought it within that category.

On the specific counts, the Court noted that a copy of the relevant contract had been produced by a third-party witness, Mr Noss, which lent support to the accused's account of the deposit amount. For the remaining counts, any prejudice arising from missing vouchers or other documents remained at least partly speculative.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • A permanent stay of criminal proceedings is an extreme remedy, reserved for a necessarily small class of cases where unfairness cannot otherwise be remedied at trial.
  • The Court of Criminal Appeal confirmed that the mere loss of potentially favourable evidence does not automatically entitle an accused to a permanent stay, even where that evidence was lost as a result of a search warrant later quashed.
  • Under the principles in Jago and Glennon, granting a permanent stay requires a weighing exercise that includes the community's interest in seeing serious criminal charges go to trial, alongside the accused's interest in a fair hearing.
  • No error was established in the trial judge's approach of proceeding on assumed facts favourable to the accused and then evaluating whether those assumed facts, taken at their highest, justified the extreme step of permanently staying the indictment.
  • Refusing leave to appeal, the Court of Criminal Appeal noted that trial judges retain powers and discretions to address unfairness arising from missing witnesses or documents, and those tools must be considered before a stay is granted.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 178BA
- Criminal Appeal Rules 1952, r 5B

Cases:
- Jago v District Court NSW (1989) 168 CLR 23
- The Queen v Glennon (1992) 173 CLR 592
- Barron v Attorney General (1987) 10 NSWLR 215
- Regina v Adler (unreported, CCA, 11 June 1992)
- Regina v Goldburg (unreported, CCA, 23 February 1993)
- Regina v McCarthy & Ors (unreported, CCA, 12 August 1994)
- Regina v Tolmie (unreported, CCA, 7 December 1994)
- Regina v Helmling (unreported, CCA, 11 November 1993)
- Doyle v Leuoux QBD noted (1981) Crim LR 631