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Supreme Court 26 May 2011

R v Smith [No 1]

[2011] NSWSC 725

Homicide
CRIMINAL LAW MURDER PERMANENT STAY "COLD CASE" LOSS OF EXHIBITS

Citation: R v Smith [No 1] [2011] NSWSC 725
Court: Supreme Court of New South Wales
Date: 26 May 2011
Judge: Buddin J

Background

The accused was charged with the murder of Russell Lyons at Fairfield on 3 June 1995. The Crown alleged that in the early hours of that morning, the accused attempted to steal the deceased's wallet, chased him into a nearby car park, and beat him to death. The Crown's key physical evidence included a pair of Adidas shoes thrown onto a building awning at the scene, on which blood stains consistent with the deceased's DNA were found. A DNA match linking the accused to the inside of those shoes was not made until 2008, and he was not arrested until June 2009, some 14 years after the killing.

The accused brought a notice of motion seeking a permanent stay of the proceedings before trial. He argued that the combination of a lengthy delay, the loss or destruction of physical exhibits and documents, and an allegedly inadequate police investigation had caused him such serious prejudice that any future trial would be an abuse of process.

The police investigation had a number of acknowledged deficiencies. These included a failure to promptly follow up information that two separate persons had claimed responsibility for killing the deceased, as well as the loss or destruction of various physical exhibits and investigative materials gathered in the years before the case was reinvestigated.

  • Whether the combination of investigative delay, loss of evidence, and deficiencies in the police investigation amounted to an abuse of process justifying a permanent stay.
  • Whether the accused had suffered actual or presumptive prejudice sufficient to render a fair trial impossible.
  • Whether the case was one of the rare "exceptional circumstances" in which the court's discretion to permanently stay proceedings should be exercised.

Decision

Buddin J refused the permanent stay application. His Honour acknowledged that the police investigation had been "in significant respects, plainly deficient," and that the accused had lost the chance to explore certain avenues of inquiry that might have assisted his defence. However, the loss of that opportunity was not equivalent to a certainty that the accused would have been better off, and that distinction was central to the court's reasoning.

His Honour applied the principle established in cases such as Gilham v The Queen and R v Helmling that what the applicant had lost was the chance he "may have been able to do better," not a certainty that he "would have done better." That kind of lost opportunity, while capable of giving rise to prejudice in some cases, will rarely produce the extreme situation the authorities require before a permanent stay is granted.

The court also noted that even where some prejudice to an accused is established, that does not automatically lead to the conclusion that any trial would be necessarily unfair. Buddin J conducted the "weighing process" required by the High Court in Walton v Gardiner, and balanced the accused's position against the substantial public interest in having those charged with serious criminal offences brought to trial, as affirmed in Dupas v The Queen.

His Honour found that the accused had not discharged the "heavy onus" required to establish that exceptional circumstances existed. He also noted that the issues raised were capable of being revisited during the trial if circumstances warranted, that the accused remained free to bring a further stay application at that point, and that appropriate jury directions or warnings could address any prejudice that materialised.

Orders Made

  • The application for a permanent stay is refused.

Key Takeaways

  • A permanent stay of criminal proceedings requires an applicant to discharge a "heavy onus" and establish "exceptional circumstances." Deficiencies in a police investigation, standing alone, are unlikely to meet that threshold.
  • The distinction between losing the chance to do better and losing the certainty of doing better is material to the analysis. Courts applying Helmling have consistently held that the former rarely justifies a permanent stay.
  • Where some prejudice to an accused is established, that finding does not compel the conclusion that a trial will inevitably be unfair. The court must weigh the prejudice against the public interest in prosecution.
  • In cold case prosecutions, the Supreme Court confirmed that concerns about investigative delay and lost exhibits can be addressed through jury directions and warnings, as well as through further interlocutory applications if prejudice crystallises at trial.
  • Refusing a permanent stay does not foreclose the accused from raising the same issues again during trial. The court noted the accused remained free to bring a further application if circumstances at trial warranted it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 96 (aggravated steal from the person)

Cases
- Walton v Gardiner (1993) 177 CLR 378
- Jago v District Court (NSW) (1989) 168 CLR 23
- Dupas v The Queen (2010) 241 CLR 237
- Gilham v The Queen (2007) 73 NSWLR 55
- R v Ngo (2003) 57 NSWLR 55
- R v Edwards (2009) 83 ALJR 717
- PNJ v R (2009) 252 ALR 612
- R v Hatfield [1999] NSWCCA 340
- R v Helmling (NSWCCA, unreported, 11 November 1993)
- R v Ulman-Naruniec (2003) 143 A Crim R 531
- Penney v R (1998) 155 ALR 605
- Aydin v R [2010] VSCA 190
- PG v R [2010] VSCA 289
- Subramaniam v R (2004) 211 ALR 1
- R v Davis (1995) 57 FCR 512
- R v Fleming [2007] NSWSC 337
- R v Carver [1999] NSWCCA 135
- Regina v Littler [2001] NSWCCA 173
- R v Tolmie (NSWCCA, unreported, 7 December 1994)
- DA v The Queen [2000] ACTSC 58