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Court of Criminal Appeal 28 October 1999

R v Hatfield

[1999] NSWCCA 340

Homicide
CRIMINAL LAW MURDER STAY OF PROCEEDINGS

Citation: R v Hatfield [1999] NSWCCA 340
Court: New South Wales Court of Criminal Appeal
Date: 28 October 1999
Judge(s): Sully J, Hulme J, Hidden J

Background

The applicant faced a charge of murdering her husband, who died from gunshot wounds at their Maroubra home in April 1985. Police were called shortly after midnight when the applicant reported finding her husband shot. A .22 calibre rifle and silencer were recovered from a nearby bay the following morning, though no bolt for the weapon was ever found.

A charge was not preferred until June 1997, more than twelve years after the death. The delay followed renewed police inquiries prompted by reports from a man named Atticus Busby, who alleged the applicant had confessed to the killing. A second alleged confession was given by a witness who encountered the applicant in the Northern Territory in 1991 or 1992. The applicant was committed for trial in September 1998, with trial scheduled to commence in November 1999.

The applicant applied for a permanent stay of the murder proceedings on the basis that key evidence had been lost by police or other authorities. Grove J in the Supreme Court refused that application in September 1999. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal.

  • Whether the loss of multiple items of physical evidence by authorities had so prejudiced the applicant that a permanent stay of the murder proceedings was warranted
  • Whether Grove J erred in refusing the stay application
  • Whether leave to appeal from an interlocutory decision refusing a stay should be granted under section 5F of the Criminal Appeal Act 1912

Decision

The central complaint concerned the loss of several significant items: the .22 calibre Brno rifle and silencer, clothing worn by both the applicant and the deceased on the night of the death, a woollen blanket partly covering the deceased, and a bloodstained glass from the scene. The applicant argued that the absence of these items prevented her from establishing that gunshot residue or blood spray would have been deposited on the killer's clothing, and from positively demonstrating none was present on her own.

Grove J had found, and the Court of Criminal Appeal agreed, that the prejudice arising from the missing physical exhibits did not reach the threshold required for a permanent stay. The Crown had already conceded it could not prove the Brno rifle was the actual murder weapon. Critically, the clothing had not been tested for gunshot residue at the time of the original investigation, and Grove J noted that appropriate packaging and storage for later testing was unlikely to have occurred in any event.

A further complaint concerned missing counselling records. Busby had consulted a counsellor at Southern Cross University the day after the alleged confession. Notes from the first thirteen sessions were missing. The applicant argued these records might have revealed inconsistencies in Busby's account. Both Grove J and the majority of the Court of Criminal Appeal were unpersuaded that the absence of these records made it unfair for the applicant to stand trial at all. Hulme J went further, concluding that on these facts refusal of the stay was the only appropriate decision.

Hulme J added, however, that nothing in the Court's reasons was intended to restrict the trial judge's powers to limit evidence at trial. That question was left entirely to the trial judge. Hidden J, while agreeing the appeal must fail, would have granted leave to appeal given the significance of the missing counsellor's notes, but ultimately voted to dismiss the appeal.

Orders Made

  • Leave to appeal refused (per Sully J and Hulme J)
  • Appeal dismissed (per Hidden J, who would have granted leave but dismissed the appeal)

Key Takeaways

  • The Court of Criminal Appeal confirmed that loss of potentially relevant evidence by authorities does not automatically warrant a permanent stay of criminal proceedings; the prejudice must be of a character that makes it genuinely unfair for the accused to stand trial at all.
  • Refusing the stay application, the court accepted that the missing physical exhibits caused some prejudice to the applicant, but found that prejudice insufficient to meet the high threshold for a permanent stay, particularly where testing had not occurred at the time of the original investigation.
  • An interlocutory decision refusing a permanent stay is not, without more, a matter that ordinarily merits leave to appeal under section 5F of the Criminal Appeal Act 1912.
  • The majority held that where the only appropriate outcome was refusal of the stay, no error by the primary judge could be established, even accepting some incompleteness in the evidence about how exhibits came to be lost.
  • A court refusing a stay does not thereby foreclose the trial judge's separate powers to limit the evidence called at trial; those powers remain available and unaffected by the stay decision.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F

Cases:
- Carosella (Canadian authority, cited in argument regarding the assessment of missing evidence and its impact on trial fairness; the majority did not find it necessary to rely on the minority reasoning in that decision)