Camelo-Gomez v R

Court of Criminal Appeal (NSW)|2022-03-04|Before: Davies J, Bellew J, Fagan J, Wilson J

Judgment

DAVIES J: The applicant has been charged with the murder of her mother, Irene Jones, at Lansvale on 2 November 2001. She has pleaded not guilty. Her trial has been fixed to commence on 7 March 2022. By a notice of motion filed 20 December 2021 the applicant sought from the trial judge, Wilson J, an order permanently staying her trial. On 21 February 2022, Wilson J refused the application and dismissed the notice of motion: R v Camelo-Gomez [2022] NSWSC 136.
On an appeal to this Court pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), this Court on 4 March 2022 granted leave to appeal but dismissed the appeal. These are my reasons for joining in the orders of the Court.

Background

On 2 November 2001 Irene Jones was murdered at her home in Lansvale by being strangled with a ligature and being stabbed in the neck with a sharp implement. In the opinion of the forensic pathologist, Dr Diane Little, the deceased died as a result of ligature strangulation. She said that stab wounds would not of themselves have necessarily led to death since no major blood vessel was injured.
An inquest into the deceased's death was held on 5 and 6 November 2007. The Deputy State Coroner found that the deceased died as a result of a violent act of homicide. The identity of the person responsible could not be determined, with the Coroner saying that the evidence certainly fell well short of the criminal standard where he could be comfortably satisfied in terminating the inquest and referring it to the Director of Public Prosecutions.
The applicant was arrested and charged with her mother's murder on 24 September 2019.
The Crown's primary case against the applicant is that, at some stage between about 8pm and 9:45pm on Friday, 2 November 2001, the applicant murdered her mother by strangling her with a ligature and stabbing her in the neck with a sharp implement. In the alternative, the Crown alleges that Carlos Camelo ("Carlos") or another person unknown committed the fatal acts, and the applicant was present in the house at the time of the killing. Carlos was a person with whom the applicant was said to be sexually involved both before and after the murder of the deceased.
After the killing of the deceased, the applicant went to a neighbour's home claiming that a man was in her house, and asserting that she had fled after having been assaulted by the unknown assailant. She told her neighbour that she could not find her mother. A call was made to triple 0, and the police arrived soon afterwards.
A police officer found the deceased lying face down on the kitchen floor, with a quantity of blood pooled beneath her. Items were found strewn about the house as if an intruder had ransacked the premises, although items of value were observed in the home in plain sight. There was no evidence that anything had been stolen. The ligature and the sharp implement used in the assault upon the deceased were never found.
The applicant gave police an account of an assault upon her carried out by a white man with blond hair, whose appearance was disguised by a stocking placed over his head. The man was wearing white fabric gloves on his hands that were stained with red marks. The applicant said that the male attacked her when she returned to her bedroom after a shower, and tried to strangle her with a cord around her throat. She managed to escape, and fled.
The applicant was later examined by a doctor. She had relatively minor injuries which the Crown alleges are inconsistent with the severity of the assault to which she says she was subjected.
The Crown case against the applicant is essentially a circumstantial one. In addition to the matters mentioned already, the significant matters were well summarised by the applicant in her submissions in this application as follows: (i) The accused was the sole beneficiary of her mother's estate and the Lansvale house was unencumbered and sold by the accused for about $300,000 in 2002; (ii) The accused was under intense financial pressure in the lead up to the death of the deceased. Extensive paperwork in the boot of the accused's car demonstrated the financial pressure she was under; (iii) Despite the financial pressure faced by the accused she obtained two new motor vehicles in late September 2001 with significant monthly repayment commitments, after having notified her employer earlier that month that she would cease employment in February 2002; (iv) According to representations made by the deceased to others, the accused in 2001 wanted a substantial amount of money from her to start a new business; (v) According to representations made by the deceased to others, she did not/would not provide this money (by sale or mortgage of property or otherwise) to the accused; (vi) The accused and deceased likely argued about financial matters on the evening of 2 November 2001 because the deceased was upset about a Water bill that remained unpaid / not completely paid despite having given money to the accused to pay it, and the taped up copy of the previously ripped bill was in boot of the accused's car; (vii) The accused was in a romantic/intimate relationship with Carlos Camelo prior to her mother's death - as conveyed by the deceased to some others and as conveyed by the accused to a Kerry Anne-Wall; (viii) According to representations made by the deceased to others, the deceased did not like Carlos Camelo and told the accused to end the relationship (including a representation to one witness that she would cut the accused out of the will if this was not complied with); (ix) The accused was prepared to go to extreme lengths to please Carlos Camelo - including by marrying his brother Cesar Camelo-Gomez in Colombia in February / March 2001 to facilitate Carlos Camelo's wish to bring his brother to Australia, this being a sham marriage; (x) The accused was providing financially for Carlos Camelo prior to her mother's death - as indicated in documentation listing certain amounts provided to him, and as conveyed by the accused and her mother to others; (xi) The accused worked a second job as a Coles cashier (in addition to her full-time job in an accounting capacity with the Church) to enable her provision of money to Carlos Camelo; (xii) The accused set up a construction business in late 2001 in furtherance of her future plans with Carlos Camelo, this being an industry she otherwise had no experience or interest in; (xiii) The accused was an overweight and unconfident woman who had not been previously in an intimate relationship and was infatuated with Carlos Camelo; (xiv) According to representations made by the deceased to others, the deceased believed Carlos Camelo had left the country by the time of her death (alleged to have been a trick orchestrated by the accused); (xv) According to representations made by the deceased to others, the accused was domineering of her mother including by physical violence; (xvi) The accused falsely reported to police when interviewed on 3 November 2001 that on 1 November 2001 she had been the victim of a road rage incident in which the driver of a Water Board van (found to be Shane Morphett) subjected her to aggressive and sexually predatory language and actions and followed her; (xvii) At the funeral of the deceased the accused when near the coffin of her mother said something like 'I'm sorry Mum it wasn't meant to go this far'; (xviii) Shortly after the death of the deceased the accused booked a flight to Colombia demonstrating flight as consciousness of guilt and did not tell police of this plan despite being asked about her upcoming plans; (xix) Despite the accused's account when interviewed being that she went immediately from escaping the intruder in her room, out the front door to her neighbour's house - she has said things indicating she knew that her mother was on the kitchen floor (which would not have been viewed had she so escaped directly from her room); (xx) The accused continued her intimate relationship with Carlos Camelo after the death of her mother, and became pregnant with his child in February 2002; and (xxi) The accused continued to spend money on Carlos Camelo as evidenced by motor vehicles purchased subsequently to the death of the deceased that were used by Carlos Camelo.
The applicant submitted that all of these matters were known to the prosecution 20 years ago.
In 2001, the police investigation quickly focused on the applicant and, to a lesser extent, on Carlos Camelo. The applicant was interviewed by police on 4 November 2001, 7 November 2001 and 21 February 2022. Electronic surveillance was implemented by police, with a telephone intercept in place over the applicant's phone from 9 November 2001 to 2 February 2002, and a listening device active in her home from 5 February to 25 February 2002. Further telephone intercepts were in place from October 2007 to April 2008, and from September 2018 to June 2019.

The primary judge's judgment

Having set out the factual background and the details of the police investigation in some detail, and the submissions of the parties, the primary judge turned to the principles to be applied on an application for a permanent stay of a criminal prosecution.
Her Honour identified that the factors to be weighed in the balance which were relied upon by the applicant, were the long delay in charging and prosecuting the applicant, a delay contended by her to be unreasonable; the consequences of that delay, including the forensic disadvantage to the applicant; and the anguish occasioned to the applicant over the years of first being a suspect and now being an accused charged with murder.
Her Honour accepted that the delay between the murder and the applicant being charged was lengthy. Her Honour accepted that in those two decades the applicant has been treated as the principal suspect in the murder, both by police as well as family and neighbours. Her Honour said that the question was whether the delay of about 18 to 20 years and the asserted unreasonable nature of it, when taken in conjunction with the oppressive nature of the proceedings that the applicant contended for, compelled the conclusion that the continuation of the prosecution involved such oppressive unfairness, incapable of being overcome, that it would constitute an abuse of the process of the court for the prosecution to continue.
Her Honour accepted that, because of the passage of two decades, the accused had lost the opportunity to test evidence fully or properly that might be led in the Crown case, or to test it all, and to adduce some evidence in her own case. Her Honour did not accept, however, that the disadvantage was as profound as was contended.
The primary judge held that the issue of delay did not apply in isolation, and her Honour then went on to consider whether the delay was unreasonable. Her Honour noted that the applicant did not point to malfeasance or other failing on the part of the police, but rather to inactivity and a lack of interest in actively investigating the case for periods of many years at a time.
Her Honour first noted that it was at least inferentially clear that, whilst DSC Walton, the officer in charge of the investigation from the outset until August 2007, believed that the applicant had murdered her mother, he did not consider that the evidence assembled against her by 2002 and 2003 was sufficient to charge her with murder. Her Honour considered that it was reasonable to conclude that DSC Walton's opinion was confirmed by those persons connected with the coronial proceedings whom he consulted.
The primary judge said that she could not find on the evidence that DSC Walton's conclusion in that regard was anything other than reasonable, albeit that it might be assessed by some as a cautious approach. Her Honour considered that the opinion of DSC Walton was not unreasonable because it was supported by the conclusions of the Deputy State Coroner. The Coroner, having considered all the available evidence, did not conclude that the evidence could satisfy a jury beyond reasonable doubt that a known person had committed an indictable offence.
The primary judge held that, bearing in mind the limitation on resources that affect all criminal investigations, she could not conclude that the conduct of the police in investigating the murder of the deceased was unreasonable in the sense of giving rise to irremediable prejudice or unfairness. Her Honour held that there was nothing improper or incompetent about the police inquiry, and it was not conducted with a view to harassing or harming the applicant.
The primary judge noted a concession by the Crown that there was no single piece of compelling new evidence between 2002/2003 on the one hand and 2019 on the other. Her Honour held that whilst that concession was properly made, that did not mean that there was no material difference in the case against the applicant as it was close in time to the murder of the deceased, and the case as it is now. Her Honour made reference to further forensic evidence in relation to the t-shirt from DSC Southall, and the evidence of variations in the applicant's account of events given over time.
The primary judge then considered whether the proceedings were oppressive. Her Honour accepted that the applicant had been greatly disturbed by the police investigation and the criminal charge brought against her. Her Honour accepted that what occurred in the succeeding years including the coronial inquest, would have been unsettling, and caused anxiety and distress for the applicant. Her Honour held, however, that for the most part these were matters that could be regarded as an inevitable, if regrettable, part of the operation of the criminal justice system. Her Honour held that they were not matters that amounted to oppression, necessarily militating in favour of a permanent stay of proceedings.
The primary judge held that in the absence of some malice or impropriety the circumstances must be truly extreme to justify the step of granting a permanent stay of proceedings. Her Honour held that the applicant had not been subjected to impropriety or illegality. Her Honour held that the matters relied upon by the applicant did not of themselves amount to proceedings that could be regarded as vexatious and burdensome in the sense that the criminal justice system itself operates as an instrument of state oppression.
The primary judge concluded that whether or not proceedings should be permanently stayed as an abuse of the Court's process was to be determined by balancing competing considerations that all have some bearing on the public interest in the operation of the criminal justice system, relying upon what was said in Rogers v The Queen (1994) 181 CLR 251 at 256.
Her Honour accepted that the applicant had been and would be disadvantaged by the process that had unfolded over two decades, and that she had been greatly distressed by it. In weighing those considerations against those that required accused persons to be brought to trial, her Honour found that the significant public interest in the determination of a criminal charge of murder against the applicant must prevail. Her Honour found that the combined effect of the matters raised by the applicant was not such as to establish that the continuation of the prosecution would compromise the administration of criminal justice and constitute an abuse of the processes of the Court.

Grounds of appeal

The applicant now seeks leave to appeal on the following grounds:
In relation to the forensic prejudice caused by the delay, her Honour mistook the facts regarding the unavailability of Carlos Camelo;
In relation to the issue of whether the delay was reasonable, her Honour mistook the facts regarding the forensic evidence gathered recently before charge;
In considering whether the delay before charging the applicant was reasonable, her Honour applied incorrect principle in requiring demonstration of irremediable prejudice or unfairness;
Her Honour's finding that the delay in charging the applicant was not unreasonable was not open to her Honour;
Her Honour's finding that the vexation and oppression of the applicant can be regarded as an inevitable part of the operation of the criminal justice system was not open to her Honour; and
Her Honour's conclusion that the continuation of the proceedings did not amount to an abuse of the court's process was unreasonable.

Legal principles

In general terms, the Court has power to stay proceedings in order to protect the integrity of its processes: Jago v The District Court of New South Wales (1989) 168 CLR 239; Walton v Gardiner (1993) 177 CLR 378; Barton v The Queen (1980) 147 CLR 75; Williams v Spautz (1992) 174 CLR 509 and Moti v The Queen (2011) 245 CLR 456.
The power to stay proceedings permanently to prevent an abuse of process will only be exercised in circumstances that are exceptional (Jago at 31 per Mason CJ, and 60 per Deane J), most exceptional (Williams v Spautz at 529), or extreme (Jago at 34 per Mason CJ), The Queen v Glennon (1992) 173 CLR 592 at 605-616. The power will only be exercised where there: ...is 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. (Barton at 111; Jago at 34)
The applicant accepts that a decision whether or not to grant a stay is a discretionary one, and that to succeed on an appeal it is necessary for the applicant to show a House v The King error: Dawson v R [2021] NSWCCA 117 at [11].
In Walton v Gardiner, the joint judgment of Mason CJ, Deane and Dawson JJ said (at 395-396): As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

Consideration of the grounds of appeal

The applicant accepted that success on either or both of grounds 1 and 2 would not result in a stay being granted. Rather, the focus was on grounds 3 to 6.

Ground 1: In relation to the forensic prejudice caused by the delay, her Honour mistook the facts regarding the unavailability of Carlos Camelo

In relation to ground 1, the applicant submitted that the Crown would have been obliged to make Carlos available for cross-examination but, in any event, if the defence had called him, it would have been open to the defence to cross-examine him with leave pursuant to s 38 of the Evidence Act 1995 (NSW). The significant matter was, it was submitted, that Carlos was no longer available to give evidence at all.
Carlos is uncharged and is, therefore, a compellable witness. However, due to impairment of memory caused by a motor vehicle accident in 2013, he is not now available to give evidence about relevant facts. The unavailability of Carlos is one aspect of the prejudice relied upon by the applicant.
In dealing with this matter the primary judge said: [253] That gives rise to an initial observation that it is by no means certain that the accused would have the opportunity to cross-examine Carlos Camelo, even were he available as a witness. On the Crown case, Camelo may well have been a person criminally involved in Mrs Jones' murder. Further, there is a quantity of evidence that would provide a sound foundation for the Crown to conclude that Camelo was an unreliable witness who was untrustworthy or incapable of belief. It would be open to the Crown not to call Camelo in its case, at least after speaking to him in conference to assess his reliability; The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 575; Whitehorn v The Queen (1983) 152 CLR 657: [1983] HCA 42 at 674-675; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [51]. Whilst the Crown would still be obliged to make Camelo available to the accused, it would in that event have been for her to call him as her witness, and she would lose the benefit of cross- examination.
The primary judge also considered the evidence about Carlos's involvement and said that the lies he told could be used by the applicant, in circumstances where he would not be giving evidence to reject or deny those matters. Her Honour also held that, if he had been available to be cross-examined, it would have been highly unlikely that he would have confessed to the murder.
The applicant submitted that these matters mistake the facts relevant to determining prejudice. The applicant submitted that the Crown would have been obliged to make Carlos available for cross-examination, but even if he was called by the defence, leave to cross-examine him pursuant to s 38 of the Evidence Act would have been given.
Whether or not her Honour overlooked the fact that the Crown may have been obliged to make Carlos available to be cross-examined by the applicant's counsel, or the fact that s 38 of the Evidence Act would have been available to the applicant if the applicant had called Carlos in the defence case, nothing flows from that in terms of whether a stay should be granted.
In R v Tolmie (7 December 1994, NSWCCA, Unreported), Hunt CJ at CL said: There are many cases in which this Court has held that a permanent stay should not be granted simply because witnesses are unavailable or lost:… In those cases, it was known what evidence could be given by the missing witness, and that the accused suffered some prejudice as a result of its loss. (Citations omitted) Here, what evidence might have been given by Carlos was speculative.
Her Honour's conclusion that his absence from the trial was not a significant matter to weigh in the balance, particularly because of the advantages that would offer the applicant, was clearly open to her Honour. Any error made by her Honour concerning the availability of Carlos Camelo for cross-examination was not an error that led to an erroneous assessment about the impact of his absence on a fair trial.
I would not uphold ground 1.

Ground 2 In relation to the issue of whether the delay was reasonable, her Honour mistook the facts regarding the forensic evidence gathered recently before charge.

Her Honour said, at [26]: Another variation in the statements of facts alleged from time to time reflects recently obtained blood spatter or blood deposition evidence from an expert in blood pattern analysis. A single area of staining on a yellow t-shirt that the accused had been wearing at the time of the assault she alleges was committed upon her by the unknown blonde male in her bedroom was analysed by Detective Sergeant ("DS") Sarah Southall. DS Southall is of the opinion that the stain is consistent with spatter stains rather than transfer stains, as may have occurred if the shirt had been touched by an individual wearing bloodied gloves as the accused asserts. The officer would also expect there to have been a greater quantity of transfer stains if the accused had been grabbed and assaulted in the way she described.
The applicant submitted that the statement that the relevant stain had "recently been found to be as a result of spatter stain rather than transfer" was incorrect. This submission mis-characterises what the primary judge was saying. Her Honour's reference was to a recently obtained expert report about the stain.
It is apparent, in any event, from the applicant's written submissions concerning this forensic evidence that there are conflicting views about the source and nature of the blood stains on the t-shirt. These will ultimately be matters for the jury. Their relevance to the present application appears only to be whether the evidence of Detective Southall, relied upon by the primary judge to reach her view at [26], is additional forensic evidence over and above what was available in the early years of the investigation.
Her Honour's conclusion at [282] in that regard was only this: There is some further forensic evidence that might bolster the Crown case in the evidence of DS Southall and, whilst the accused intends to call an expert whose evidence may cast doubt upon the reliability of DS Southall's opinions, that is an assessment for a jury to make. It cannot be said at this stage that DS Southall's evidence is immaterial or unreliable, and it could not have been said by DSC Clark when she assessed the evidence against the accused.
Even if error was established on this ground, it formed one only of a number of considerations by the primary judge of whether the delay was unreasonable. The applicant accepted that this was a case where forensic evidence was not as important as in some other cases.
In that way, the applicant's concession that success on this ground cannot determine the outcome of the stay application was properly made.
I would not uphold ground 2.

In considering whether the delay before charging the applicant was reasonable, her Honour applied incorrect principle in requiring demonstration of irremediable prejudice or unfairness;

Her Honour's finding that the delay in charging the applicant was not unreasonable was not open to her Honour;

Her Honour's finding that the vexation and oppression of the applicant can be regarded as an inevitable part of the operation of the criminal justice system was not open to her Honour; and

Her Honour's conclusion that the continuation of the proceedings did not amount to an abuse of the court's process was unreasonable.
These grounds can conveniently be dealt with together since Senior counsel for the applicant made clear that success on the appeal depended on the issue of whether the delay was unreasonable, which was inextricably linked to the notion of abuse of process. The applicant accepted that vexation and oppression is not unjustifiable unless there is unreasonable delay.

Submissions

The applicant drew attention to what the primary judge said at [280]: Bearing in mind the limitations on resources that affect all criminal investigation, I cannot conclude that the conduct of the police in investigating the murder of Mrs Jones was unreasonable in the sense of giving rise to irremediable prejudice or unfairness. There was nothing improper nr incompetent about the police inquiry.
The applicant submitted that this was a misstatement of principle, and that the conclusion that the delay was not unreasonable was not open to the primary judge.
The applicant submitted that the reasoning in that paragraph improperly merged the issue of forensic disadvantage in the narrow sense, with unreasonableness, when those two matters should be separately weighed. The applicant was also critical of her Honour for introducing the concept of improper purpose which, the applicant submitted, was a different basis for seeking a permanent stay.
The conclusion was said not to be open to the primary judge because there were unexplained and lengthy delays in the investigation. The applicant submitted that the developments in the forensic evidence were extremely minor, and asserted that the Crown did not contend that they were significant enough to make the difference between not prosecuting the applicant and prosecuting her. When taken in the context of the extreme delay, the applicant submitted that it was not open to her Honour to find that the delay was not unreasonable.
The applicant submitted that the primary judge accepted that the applicant had suffered significant distress in the history of the matter, being a suspect from an early stage, and treated as such. The brief at the coronial inquest made clear that the applicant was responsible. The applicant submitted that it was not open to the primary judge to find that these matters can be regarded as an inevitable part of the operation of the criminal justice system.
The applicant submitted that while the seriousness of the charge is a relevant consideration to the weighing process, the purposes of trial and punishment have not been thought important enough by the state to warrant prosecution for some two decades. In circumstances where evidence relied upon had been available for so long, and has become degraded with time, those purposes are not being treated seriously.
The applicant submitted that while she did not have a right to be tried in 2002, she has a right to require the court to ensure that its processes are not used as an instrument of unfairness by unreasonably trying her now instead of in 2002, with the consequential deterioration in the quality of the evidence, and the oppression she has suffered in the meantime. The applicant submitted that the evidence more recently obtained was negligible, that it has not materially changed the case, and was able to have been gathered nearer to the time of the killing.
The applicant submitted that the delay was so extreme and unjustifiable that, in combination with the accused's experience of coronial proceedings and the actual prejudice caused to the fairness of the trial, the continuation of the proceedings would be unreasonably burdensome and so unfairly and unjustifiably oppressive as to constitute an abuse of process.

Determination

The first matter to note is that the applicant was charged on 24 September 2019 and her trial was due to start in February 2022. The delays complained of relate to the investigating authorities.
It is apparent that the focus in Jago was delay within the court system. In that case, the accused had been charged in 1981 with offences committed between 1976 and 1979. A bill of indictment was not found until 1986, and the matter came for trial in February 1987. It was in those circumstances that Mason CJ said (at 30): In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay.
The distinction between the courts and law enforcement agencies was emphasised by Gageler J in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 where he said: [139] … The guiding principle, as the Court of Appeal recognised, is that prejudice occasioned to a criminal defendant by circumstances outside a court's control ought to result in a permanent stay of criminal proceedings only if it is productive of substantial unfairness which cannot be substantially mitigated by the court exercising the control that it has over its own procedure: R v Glennon. (1992) 173 CLR 592 at 605; Williams v Spautz (1992) 174 CLR 509 at 519; Dupas v The Queen (2010) 241 CLR 237 at 245 [18], 250 [35]; Moti v The Queen (2011) 245 CLR 456 at 464 [10]. … [153] Ours is not a system of justice in which courts and law enforcement agencies exist in some sort of continuum. Between the two, there is a sharp, constitutionally mandated, division. Courts, in exercising their own powers, should be careful to guard against creating a tendency for the public perception of that division to become blurred. [154] As I have emphasised from the outset, the power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. It is not a power to discipline or to punish those who might bring those proceedings or those who might stand behind them. Its focus is on prevention of the court's procedures being used in a manner that is inconsistent with the due administration of justice by the court. In a case where use of the court's procedures would be substantially unfair, the inconsistency lies in the administration of justice by the court being converted into an instrument of that substantial unfairness. In a case where use of the court's procedures would bring the administration of justice into disrepute, the inconsistency lies correspondingly in the tendency of the court, in permitting that use of its procedures to occur, to erode public confidence in the court's administration of justice in that and other cases. [155] Where criminal proceedings are brought in a court by or on behalf of the executive, by or at the behest of a law enforcement agency, the function of the court is to adjudicate the controversy which at that point exists between the executive and the criminal defendant as to the existence and consequences of the criminal liability that is charged. Where such criminal proceedings are sought to be permanently stayed as an abuse of process on the application of the defendant by reference to the prior unlawful conduct on the part of officers of one or more law enforcement agencies or other officers of the executive, the focus of the requisite analysis must be on the effect of that conduct on the performance of that function.
It will only be, therefore, if the continuation of the proceedings after the lengthy delays during the investigation brings about an abuse of process, or will impair the integrity of the Court's processes, that a permanent stay will be granted.
A summary of the history of the police investigation was provided by the present officer in charge of the strike force set up to investigate the murder, Detective Senior Constable Sally Clark, who became the officer in charge in around June 2018. DSC Clark reviewed large quantities of material produced by the NSW Police Force under subpoena.
Following the deceased's murder NSW police force commenced an investigation, managed under the reference "Strike Force Trancas", led by then by DSC Andrew Walton attached to Cabramatta police station.
The applicant had been identified as a suspect by 5 November 2001. The reviewed material showed a great deal of work by DSC Walton and a Detective Cox mostly in 2002, but extending into 2003 and 2004. There were a number of discussions and meetings between DSC Walton and the Coronial Advocate in 2004 and throughout 2005. It was expected that the inquest would take place in 2005 but for reasons which are unclear, it did not take place until 2007. In August 2007, DSC Christine Meszaros, attached to Cabramatta police station, took over investigative duties from DSC Walton and made ready the matter for the inquest.
On 5 and 6 November 2007, the coronial inquest was held into the deceased's death. The applicant and Carlos Camelo were nominated as Persons of Sufficient Interest in the proceedings. DSC Meszaros facilitated surrounding investigative strategies. At the conclusion of the inquest, Deputy State Coroner Magistrate Milovanovich referred the matter to NSW police force Homicide Unsolved Crime Unit for further investigation.
The Unsolved Homicide Team (UHT) is a unit within the NSW police force State Crime Command Homicide Squad. It was established in 2004, and the initial parameters of the Unit were to conduct formal reviews of historical unsolved homicide cases which had occurred between 1 January 1970 and 31 March 2001. That end date was later extended as time progressed. In July 2008 the UHT formally expanded to include a capability or reinvestigation into unsolved homicide cases reviewed to have a degree of solvability.
In the meantime, DSC Meszaros was liaising with the New South Wales Crime Commission at various times in 2008 in relation to the matter.
On 24 October 2011 the UHT review into the deceased's murder was finalised by DSC Kellie LeVien.
Around February 2012 DSC Kim Fidden, attached to the UHT Review Team, commenced enquiries into the case, including gathering and collating the NSW police force holdings relevant to Strike Force Trancas.
In June 2012, DSC Matthew Heffernan, attached to a UHT investigative team, assumed the role of officer in charge of the case. From September 2012 DSC Heffernan gathered, collated and assessed holdings in relation to the case. By November 2012 the reinvestigation was assigned the reference "Strike Force Trancas - 2".
There was evidence from DSC Clark that the review process relating to unsolved homicides is difficult, and such reviews are undertaken in accordance with the priority assigned to each. The UHT team could have as many as 700 unsolved cases to review, and resources were finite.
Between approximately September 2013 and March 2017, due to resourcing and reallocation to alternative significant investigations within the UHT, namely the investigation into the 1980 to 1985 Family Court bombings and related homicides, the case was not advanced.
From around March 2017, DSC Heffernan, assisted by DSC Melanie Staples, recommenced the reinvestigation into the case. Around June 2017 the first "new" statement was taken under the reference Strike Force Trancas - 2.
From around August 2017, DSC Clark commenced an assisting investigative role on Strike Force Trancas - 2. As noted earlier, from around June 2018 DSC Clark became the Officer in Charge of Strike Force Trancas - 2 because of the significant court commitments of DSC Heffernan and DSC Staples.
In 2018 and 2019, the applicant was placed under further electronic surveillance, although nothing of relevance was revealed.
DSC Clark was asked about the pace of the police investigation. She did not agree that it had proceeded slowly. She said that the speed of an investigation is relative, and needs to be assessed within the overall context of the work undertaken by the UH Team. Prioritization was a consideration. DSC Clarke said that she had taken over as the officer in charge, and most of her working time was on this investigation.
In my opinion, her Honour's conclusion that the delay was not unreasonable was open to her on the evidence. The material tends to indicate that the evidence upon which the present charge is brought does not significantly differ from what was available to DSC Walton. However, the additional forensic evidence from DS Southall may, as the primary judge said, bolster the Crown case. That is ultimately a matter for the jury when they have also considered the evidence of Mr Gerhard, to be called by the applicant.
DSC Walton's opinion of the strength of the Crown case may be thought to have been supported by the Coroner who, even with the benefit of an enquiry not bound by the rules of evidence, concluded that the evidence fell well short of the criminal standard for referral to the DPP. That conclusion by the Coroner tends to suggest that with regard to delay, and whether it was unreasonable, little weight should be placed on the period prior to the coronial inquest.
The fact that on a review by another police officer of all the evidence, together with the additional forensic and other evidence, referred to at [283] to [285] of the primary judge's judgment, the applicant has now been charged, does not lead to the conclusion, as the applicant submitted, that the court's processes are being brought into disrepute.
Certainly, the chronology points to delays subsequent to that time, but the delays need to be placed into context. The UHT was not initially an investigative body, but a review body. Its purpose changed during a review of Mrs Jones' murder. It was only in 2012 that the matter commenced to be reinvestigated. The ability of the UHT to progress such investigations was restricted by resources and the prioritising of cases. It was in the period 2013 to 2017 when the most unfortunate delays occurred, because of the need to give priority to the Family Court bombings and related homicides.
It should not be overlooked, bearing in mind what was said by Mason CJ in Jago (at [60] above), and by Gageler J in Strickland (at [61] above), that, having been arrested in September 2019, the applicant's trial was due to start on 4 March 2022. The delay, such as it is, has all been at the hands of the prosecuting authorities and not the Court. In my opinion, the history of the matter does not lead to the conclusion that the Court's processes are being brought into disrepute, nor that any abuse of process has occurred as a result of the delays which have occurred.
In that way, ground 4 should not be upheld.
Further, when what her Honour said at [280] (see at [51] above) is read in the context of the whole of her Honour's remarks, I do not consider (contrary to ground 3) that her Honour's ultimate balancing exercise improperly merged forensic disadvantage and unreasonableness, nor that any incorrect principle was applied. It is clear from Strickland at [62] (per Kiefel CJ, Bell & Nettle JJ), and [159] (per Gageler J), that illegality and impropriety are relevant considerations on an application for a permanent stay.
The applicant accepts that, ultimately, her Honour had to engage in a balancing exercise in assessing the delay, to determine if the proceedings are oppressive to the applicant, and that her Honour undertook that balancing exercise.
The primary judge found, in the applicant's favour, that the applicant has been and will be disadvantaged by the process that has unfolded over two decades. The primary judge accepted that the applicant had been greatly distressed by it. Her Honour found, however, that the matters relied upon by the applicant did not amount to proceedings that could be regarded as vexatious and burdensome in the sense that the criminal justice system itself operated as an instrument of state oppression. As Strickland makes clear at [256], it is not simply that court procedures are oppressive, an applicant must show that they are unjustifiably oppressive.
The primary judge identified at [260] to [266] the manner in which various aspects of unfairness could be dealt with and ameliorated at the trial, as Brennan J had identified in Jago at 47. Her Honour also noted what was said by Bathurst CJ in Dawson v R [2021] NSWCCA 117 at [6]: … [I]t must be remembered that a fair trial is not necessarily a perfect trial. As was pointed out by the plurality in R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31], it happens on occasion that relevant material is not available, documents, recordings and other things may be lost or destroyed, and witnesses may die. The plurality pointed out that "[t]he fact that the tribunal of fact is called upon to determine issues of fact upon less than all the material which could relevantly bear upon the matter does not make the trial unfair" (R v Edwards at [31]).
In Jago, Deane J said at 55-56: The subjection of an accused to the burden of criminal proceedings is, however, an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts. It is something which the individual must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction. In a real world where institutional resources are limited, some undesirable delay in the administration of criminal justice is inevitable. That being so, the burden of criminal proceedings even where intensified by such delay cannot, without more, properly be seen as unfairly oppressive or as an abuse of the process of the particular court. To the contrary, it is a normal incident of the due administration of criminal justice and of that process. The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first become aware of the alleged criminal conduct and of the material said to prove the accused's guilt and whether the charge is a complex or a simple one. When that stage is reached, an accused can, if he does not share responsibility for the delay, justifiably claim that the burden of pending criminal proceedings has passed beyond what can be justified in the due administration of justice.
What is there said goes a considerable way to show that the basis for ground 5 of the appeal should not be upheld.
Moreover, as Brennan J said in Jago at 50: Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim.
For those reasons, grounds 3 and 5 should not be upheld.
As was said in Walton v Gardiner (at [32] above) a significant factor to weigh in the balance is the legitimate public interest in the disposition of serious charges, and the conviction of those guilty of crime. It is frequently said that murder is the most serious crime in the criminal calendar, and that factor assumes greater importance when the balancing act is being carried out: Dawson v R at [7].
The evidence does not establish that the continuation of the proceedings amounted to an abuse of process. The applicant does not identify any error in the primary judge's assessment of the balancing act required to be carried out. It has not been demonstrated that her Honour's conclusion was not open to her.
Ground 6 should be not be upheld.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Davies J. For the reasons set out by his Honour, I joined in the orders which were made at the conclusion of the hearing.
FAGAN J: The reasons of Davies J accord with my own reasons for having joined in the orders dismissing this appeal on 4 March 2022. I agree with his Honour.
As his Honour's summary of the appeal shows, the applicant concentrated upon her arguments under grounds 3-6 that the delay in bringing the charge against her was unreasonable and should have been found so by the learned trial judge. The applicant's arguments under those grounds concerning the quality of unreasonableness in the delay focused upon alleged neglect of the investigation by police, alleged unjustified failure to lay the charge during many years over which the available evidence was much the same as that which is now relied upon against her and alleged oppression and vexation of the applicant caused by having to defend a belated charge after many years of the investigation having, as the applicant asserts, stagnated.
This focus of the applicant's argument upon alleged fault of police in causing the delay and vexation to herself in a personal sense caused by the delay does not address the clear statements of the High Court in Jago v The District Court of New South Wales that, in order to justify a permanent stay in such a case, it must be shown that actual irremediable prejudice and unfairness to the accused in the conduct of his or her defence at trial will occur as a result of the delay: at p 34 (Mason CJ), pp 46-47 (Brennan J), pp 71-73 (Toohey J) and p 78 (Gaudron J). That has not been shown by the applicant. The subject matter of grounds 1 and 2 is the nearest that the applicant came to addressing this critical factor and, for the reasons given by Davies J, those grounds do not succeed.

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