Citation: Duncan v Crews; Stanley v Farlow [2001] NSWSC 376
Court: Supreme Court of New South Wales (Common Law Division)
Date: 10 May 2001
Judge(s): Greg James J
Background
Two prosecuted defendants had each faced summary charges in the Local Court for allegedly obtaining social security payments they were not entitled to, contrary to the Social Security Act 1991. The prosecutions centred on Fortnightly Continuation Forms that recipients had completed to declare income. Centrelink had destroyed many of those forms, as it was permitted to do under the Archives Act 1983, and sought to rely instead on computer-generated "Earnings from Employment" records.
Both defendants applied for permanent stays of their proceedings on the basis that the destruction of the original forms denied them a fair trial. They could not recall what they had written years earlier, and without the forms, they argued they had no way to demonstrate that any errors in their declarations were honest ones. Both matters were heard together in the Supreme Court because they raised the same factual background and the same question of law.
The central controversy was whether the South Australian Supreme Court decision in Commonwealth Service Delivery Agency v Bourke should be followed in New South Wales, and whether the respective magistrates had correctly applied the principles governing stays for lost or destroyed evidence.
Legal Issues
- Whether a permanent stay of summary criminal proceedings is warranted where Centrelink has lawfully destroyed key documentary evidence relied on by the prosecution
- Whether the South Australian decision in Commonwealth Service Delivery Agency v Bourke correctly stated the law, and whether it should be followed in New South Wales
- Whether the magistrate in Duncan v Crews erred in granting a stay
- Whether the magistrate in Stanley v Farlow erred in refusing a stay
- What alternative remedies (short of a stay) are available to a court where potentially unreliable evidence has been adduced, including rejection of evidence, adverse inference directions, and acquittal
Decision
Greg James J held that a permanent stay of proceedings is an exceptional remedy and must not be granted without adequate consideration of other available tools. Those tools include the power to reject the computer-generated evidence, to evaluate its weight critically, to draw or refuse to draw inferences from the absence of original forms, and to direct the tribunal of fact appropriately. A court must work through those alternatives before concluding that nothing short of a stay will suffice.
The Court examined Bourke and declined to treat it as determinative of when a stay should be granted in New South Wales. His Honour identified deficiencies in that decision, particularly its failure to examine the possibility of rejecting or limiting the weight of the prosecution's systems evidence, and its failure to consider whether an acquittal rather than a stay was the appropriate response in circumstances where the prosecution could not satisfy its burden of proof.
In Stanley v Farlow, the magistrate who refused the stay had correctly reasoned that the very absence of the forms would operate to the defendant's advantage at trial. If the defendant gave evidence that she had not intended to deceive, the tribunal of fact would have to weigh her account in the context that she had no means of proving what she actually wrote. That reasoning was held to be sound.
In Duncan v Crews, the magistrate who granted the stay had erred. She had not demonstrated, at least on the face of her decision, that she had turned her mind to the exceptional nature of the remedy or to the range of lesser measures available. Her Honour's failure to address those matters meant the stay could not stand. The Court relisted the matters for the parties to address what further orders were appropriate.
Orders Made
• The decision in Stanley v. Farlow refusing to permanently stay proceedings in respect to counts one to five in the information was correct
• The learned magistrate in Duncan v. Crews & Anor erred in law in permanently staying proceedings in respect to counts one, five, seven and eight
• The matter shall be re-listed for the parties to inform the court what further questions remain outstanding, alternatively to bring in short minutes as to the appropriate form of orders
Key Takeaways
- A permanent stay of criminal proceedings for destroyed evidence is an exceptional remedy; before granting one, a court must consider all available alternatives, including exclusion of evidence, critical evaluation of its weight, and the possibility of acquittal.
- The decision in Commonwealth Service Delivery Agency v Bourke (SA) is not determinative of when a stay should be granted in New South Wales, and the Supreme Court here declined to follow it.
- Where the absence of original documents means the prosecution cannot discharge its burden of proof beyond reasonable doubt, acquittal may be the more appropriate outcome rather than a permanent stay.
- A magistrate who grants a stay without expressly addressing the exceptional nature of the remedy and the adequacy of lesser measures commits an error of law reviewable by the Supreme Court.
- In refusing a stay, the magistrate in Stanley v Farlow correctly identified that the unavailability of the forms could benefit the defendant at trial, since a tribunal of fact assessing her credibility would necessarily account for her inability to verify what she originally wrote.
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW)
- Social Security Act 1991 (Cth), ss 1347, 1350
- Crimes Act 1914 (Cth), s 4B(2)
- Evidence Act 1995 (NSW)
- Archives Act 1983 (Cth)
Cases:
- Commonwealth Service Delivery Agency v Bourke (Wicks J, unreported, 16 April 1999)
- Williams v Spautz (1992) 174 CLR 509
- Walton v Gardiner (1993) 177 CLR 378
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Barton (1980) 147 CLR 75
- May v O'Sullivan (1955) 92 CLR 654
- Holmden v Bitar (1987) 47 SASR 509
- Crawford v Bickar (1987) 75 ALR 522
- Heinze v Burnley (1992) 57 SASR 452
- Davis (1995) 81 A Crim R 156
- Reeves (1994) 122 ACTR 1
- Adler (CCA, unreported, 11 June 1992)
- Goldburg (CCA, unreported, 23 February 1993)
- Tolmie (CCA, unreported, 7 December 1994)