DUNCOMBE-WALL v POLICE No. SCGRG-98-502 Judgment No. S6754 [1998] SASC 6754

In his reasons the learned Magistrate made the following suggestion:

"It maybe that the hardship perceived by the defendant could be ameliorated by the prosecution making further enquiries and adducing evidence from officers who were involved in the emergency call service and in responding to calls received on that night. I leave that for the prosecution to consider."

Implicitly His Honour recognised that the loss of the evidence had at least raised a perception in the appellant's mind that it would cause the appellant hardship.

Immediately after he delivered his reasons for refusing the application counsel for the appellant indicated that his client would object to Mr Field SM hearing the trial of the action because of "assessment of factual matters given in an endeavour to resolve this and a related matter".

On 12 November 1997 the matter came on for hearing before Mr Boxall SM when the appellant pleaded not guilty. Counsel renewed the application for a stay of the proceedings. The transcript discloses that the learned Magistrate declined to make a ruling. Counsel who appeared at the trial swore an affidavit in relation to the hearing before the learned Magistrate. He has deposed that the learned Magistrate "took the view that its (the application for the stay) outcome had already been determined by another Magistrate."

The trial proceeded. The prosecutor advised the Court that the Police Officers who attended at the house of the appellant and his wife would not be called. The matter was adjourned to allow the prosecutor to contact the Police Officers. When the matter resumed the prosecutor again informed the Court that the Police Officers would not be called.

The prosecutor called the appellant's former wife and their son. He closed the prosecution case. The appellant gave evidence. The appellant's solicitor in Family Court proceedings involving the appellant and his former wife was called. The only other witness called by the appellant was the prosecutor. He was called to contradict evidence given by Mrs Duncombe-Wall. He was also led in relation to the missing evidence. In cross examination another prosecutor asked the prosecutor why it was that the Police Officers were not called. The prosecutor claimed that the Police Officers would not have been able to add anything to the evidence of Mrs Duncombe-Wall and her son.

On 9 February 1998 Mr Boxall SM, in ex tempore reasons, found that all elements of the offence had been proved beyond reasonable doubt and the charge had been made out. No conviction was entered at that time. No conviction has yet been entered. The matter has been remanded pending this appeal.

The notice of appeal was lodged on 30 March 1998. In it the appellant seeks an extension of time to appeal against the finding that:-

"On the 5th day of February 1997 at Ironbank in the said State without lawful excuse threatened to cause harm to Susan Duncombe-Wall intending to arouse a fear that the threat will be, or is likely to be carried out, or being recklessly indifferent as to whether such a fear is aroused. Section 19(2) of the Criminal Law Consolidation Act 1935."

The notice does not make it entirely clear the appeal is brought against Mr Field's decision or Mr Boxall's decision. The grounds of appeal are such that it appears that the appellant challenges both decisions. I will refer to those grounds in due course.

In the circumstances of this case it would be appropriate to grant an extension of time within which to appeal against both decisions until the date of the filing of the notice of appeal, 30 March 1998.

It is necessary in considering this appeal against both the refusal to grant a stay and the finding to have regard to the evidence in the trial.

The appellant and his wife separated some time before the alleged offence and were divorced in August 1996. After the separation and indeed after the divorce the couple continued to live in the same house (the former matrimonial home), although separately and apart, with their son Norman. The appellant, however, was often overseas on business.

At the time of the alleged offence two sets of proceedings were alive in the Family Court. The first was in relation to an application for property settlement and spousal maintenance. In those proceedings, the appellant's former wife had applied for exclusive use and occupancy of the former matrimonial home and spousal maintenance of $100,000. In that application Mrs Duncombe-Wall had filed affidavits in which she claimed that threats had been made against her safety by the appellant. The threats were denied by the appellant. The second proceedings in the Family Court were brought by the appellant in which he alleged that his former wife had withdrawn around $150,000 from their joint account which the appellant claimed she had "stolen" from him.

On the 5 February 1997, the appellant returned from the United Arab Emirates where he had been on business for some months. When Mrs Duncombe-Wall returned home to Ironbank at about 7.30 pm her son Norman was in the house with the appellant. An argument broke out between the appellant and Mrs Duncombe-Wall. At about 8.30 pm the appellant drove away from the house in his car. Mrs Duncombe-Wall went to bed but she says she was woken at about 10.30 pm by the sound of someone at her bedroom door. Whilst the appellant was overseas she had put a lock on her door. She said that it was her husband at the door and that he became very abusive when he could not get into her room. He demanded she let him in. She said he used his shoulder to bang against the door and later "picked up an item and smashed that through the door." He put his fist through the door and unlocked the door and came into the bedroom.

"He was shouting I was a thief, that I'd stolen his money, in terminology of 'Fuck this and fuck you', then he went on to say about the gun that he had and how he had held back some bullets that he had. He was going to shoot himself, he was going to shoot me, he was going to burn the house down and everyone in it."

The appellant admitted that he broke into his former wife's bedroom but denied that he used anything apart from his fist in making a hole in the bedroom door. He further denied having said anything about killing anyone. There was a clear conflict in the evidence of Mrs Duncombe-Wall and the appellant.

The appellant's son, Norman Duncombe-Wall, gave evidence which was consistent with his mother's account. He was asked what the appellant said when he was trying to get into his ex-wife's bedroom.

"Q Can you remember the words he used. I would like you to try and remember and quote him word for word.

A 'Open the fucking door, open the fucking door, I'm fucking coming in. If you don't open the door I'm going to kick the door in. I'll count to ten.'

A He counted to ten and there was a very loud banging and I heard him screaming even louder.

Q Which door do you think was being tackled at that time.

A He was screaming that everyone was against him. He was screaming he was going to get everyone that was against him. He screamed that he was going to kill himself, kill everyone, burn the house down with everyone in it and kill himself.

Q I would like you for the last time try and quote, word for word, what your father said at that stage.

A He was saying, 'I'll kill, I'll kill you all, I'll burn the house down with everyone in it. I'll kill myself."

Mrs Duncombe-Wall said that after the appellant had broken into her room their son came down the hall and came into the room. She told her son: "If this continues, I'll get you to phone the Police".

She said that she then went to the bathroom and ingested half a tranquilliser. She said that the appellant was alternating between being calm, as if nothing had happened, and then displaying outbursts of rage. She said that after a while she feared for her safety and told her son to call the Police. In her explanation of her son's attempt to call the Police, she said:

"Brian (the appellant) wouldn't allow Norman to use the phone, kept trying to take it from Norman's hands as Norman was speaking to the operator, and Norman moved with the phone. Brian tried taking the phone out of his hand, Norman pushed him out of the way, and then Brian rushed into his room, picked up the extension and started speaking to the operator."

"They were both speaking at the same time, then Norman stopped speaking and Brian continued the conversation by announcing who he was and saying to the person at the other end 'This is a domestic, my wife fears for her life.'"

After this incident she says that the son went outside to wait for the Police. An argument about whether the front door should be open or not broke out between the appellant and his son. Norman became annoyed and pushed the appellant into the wall. Some time later the Police arrived. Norman's evidence was substantially consistent with his mother's recollection of events and as I have said corroborated Mrs Duncombe-Wall's evidence in relation to what the appellant had said that night.

The appellant denied that he threatened his ex-wife at any stage and denied that he ever said anything about killing himself or anyone else. After breaking into his ex-wife's bedroom he said that he could not get any sense out of her and went back to his own room. From there he said that he felt "something was not right" so he telephoned his brother who lived next door, only to be connected to an answering machine. He then rang another brother who lives in Queensland. The appellant said that he made the calls because: "In particular my son appeared to be somewhat aggressive that evening."

After contacting his brother he then tried to ring the Police. He said that he tried to make this telephone call from the 'sun room' but his son pushed him away from the telephone. He said that he then went into another room and picked up another telephone and dialled the 000 number. The appellant said that he made this call to the Police because he had become fearful of his son's aggressive behaviour towards him. He said that he told the operator that there was a domestic dispute but denied that he ever said anything about his wife being fearful of her life. He further denied that his son Norman made the telephone call and that he picked up the extension subsequent to Norman dialling the 000 number.

The appellant referred to the argument with his son about closing the front door because insects were coming in. After that argument he said he called the 000 number a second time and spoke to a male operator. He says that his son became aware that he had made the telephone call. The appellant said in evidence: "For some unknown he - after he heard that I had telephoned the Police, he hit me with an almighty blow to the chest." Some time after this the Police arrived. The appellant said that he became confused when the Police arrested him because he was the one who had called them.

There was a significant dispute on the evidence about the circumstances giving rise to the telephone calls and who in fact called the emergency number. Whilst the question of the telephone calls was not central to the issue in the case it was a very important matter on the question of the credibility of the witnesses.

The question of the credibility of the witnesses was a matter which had to be determined. The learned Magistrate was not entitled to reach a conclusion that the charge had been made out unless he was satisfied that the evidence of Mrs Duncombe-Wall and her son ought to be preferred to that of the appellant and further that he was satisfied beyond reasonable doubt, upon that evidence, that the charge had been made out.

He was not assisted by any evidence of any Police Officers who had attended at the scene. He was therefore obliged to consider the competing versions unassisted by the evidence of any third party.

The learned Magistrate indeed decided that Mrs Duncombe-Wall was a truthful and honest witness notwithstanding that in one material respect she was contradicted by the evidence of the prosecutor. He described that contradiction as a peripheral matter and a minor error.

He believed that Norman Duncombe-Wall's evidence was "equally sincere and of a very high standard".

In respect of the absence of the Police Officers the learned Magistrate said that he agreed that they should have been called. He said they were in a good position to see the physical damage done to the premises and the state of the parties. They also had conversations with the protagonists. The prosecutor said that the evidence would not add much to the case.

The learned Magistrate was critical of the prosecution in failing to call that evidence and in particular the reason advanced as to why the evidence was not called.

However, the learned Magistrate had thought the case had been so overwhelmingly proved that the absence of the Police Officers caused him no particular concern.

His Honour discussed the absence of the 000 evidence. He said that he had proceeded upon the basis that there was not an issue of stay of proceedings before him. In relation to the 000 evidence he said:

"I will develop my findings more fully in a moment, but it should become abundantly clear from my findings I have formed the view that notwithstanding the unfortunate destruction of that material it has not caused a significant problem in the case, because the case is in any event is really an overwhelmly[sic] strong prosecution case. In particular I accept that the defendant made, at least one 000 call and joined with Norman Duncombe-Wall in at least another 000 call to police headquarters. The issue of what may have been said or how far the defendant discussed the issue of the domestic violence incident that had just occurred and whether Mrs Duncombe-Wall[sic] recollection of that was absolutely right, would have been interesting but in my view the tape itself even if it had shown some slight differences between the witnesses testimony and the tape would not have played a very big part in my coming to the decision that I have."

The learned Magistrate made explicit findings in relation to the 000 calls and in particular that the appellant made one 000 and that he and his son jointly made the other call.

That was contrary to the appellant's evidence. His evidence was that he made both calls and made both calls for the purpose of his protection. He said he told the Police as much.

The learned Magistrate found that the appellant's evidence did not have the same consistency and the same sincerity, as he put it, as the evidence of his former wife and son. He described the appellant's evidence as almost absurd.

In my opinion, although the 000 evidence went only to the question of credibility it was, in the circumstances of this case, important evidence. The evidence, if it had been called, had the potential to corroborate the appellant's account of the telephone calls to the Police. If his evidence had been corroborated on that topic necessarily it meant that the evidence of his former wife and his son had to be rejected on that topic.

The learned Magistrate concluded that Mrs Duncombe-Wall and her son were inaccurate in respect of an important albeit peripheral matter. If the "000" evidence supported the appellant's account the learned Magistrate may well have reached the conclusion that their evidence could not safely be relied upon for the purpose of reaching a conviction. If they had been discredited or found to be inaccurate in respect of this matter it might have been difficult to reach a conclusion that their evidence was sufficiently reliable to support a finding that the charge had been proved beyond reasonable doubt.

The appellant appealed on a number of grounds which I set out:

"1. That the learned special Magistrate who ruled upon the Application for a Permanent Stay was misled by the effect of the Prosecution "concession" with respect to the making of the first "000" telephone call.

2. When it became apparent upon the evidence called by the Prosecution at trial that the witness Norman Duncombe-Wall asserted that he made the first "000" call, that he spoke with Police on this occasion and gave his own personal particulars (transcript p86 XN and p117 XXN), the Prosecution "concession" before the Learned Special Magistrate was

b. insufficient to enable the ruling with respect to the destroyed evidence to be properly evaluated.

3. Upon the crystallisation of the Prosecution case on this topic, the effect of the destruction of the evidence was such as to render the Prosecution of the trial unfair and to deny the appellant the chance of acquittal.

4. The Learned Special Magistrate at trial erred in finding that the destruction of the tape did not cause a significant problem in the case (Judgment p7.5).

5. The Learned Special Magistrate at trial erred in finding that the absence from the trial of the police officers who attended the scene in response to the "000" telephone call, was not a matter of concern (Judgment pp. 5.9 - 6.2).

6. The Learned Special Magistrate erred in dismissing as reflecting adversely upon the credit of Susan Duncombe-Wall the proved previous inconsistent statement with respect to overhearing the appellant say to Police during the "000" telephone call "My wife fears for her life" (Judgment pp 3.2 - 4.5).

7. The Learned Special Magistrate approached his task as trier of fact with a pre-conceived view of the likely factual scenario of serious incidents of domestic violence, and, in particular, the likelihood of taking over "000" telephone calls, when the factual matter was crucial to the question of credit in this trial.

8. The Learned Special Magistrate failed to give sufficient weight to the evidence of the appellant's solicitor, David Peacock, that there was an ongoing dispute concerning a joint bank account in the Family Law Act proceedings, which was denied by Susan Duncombe-Wall, the evidence giving rise to a motive for a false allegation of the offence. (Transcript p205 and Judgment p19.5).

In so far as it may be necessary, the appellant applies for an extension of time within which to appeal."

The appellant's solicitor was first instructed on 7 February 1997 and on 11 February 1997 he wrote to the Police prosecutor seeking details of the charges against the appellant and seeking some further information. On the following day he received, by facsimile transmission, a copy of the Police apprehension report and on 17 February he received a copy of Mrs Duncombe-Wall's statement. That statement referred to a telephone call to the Police.

On 24 February 1997 the solicitor wrote to the Officer In Charge, Adelaide Prosecution Unit, in the following terms:

My client says, contrary to the materials supplied that it was he who dialled "000" for the police on two occasions on the night of the incident.

Please preserve the tape and advise me when you have done so."

On 25 February 1997 the matter was called on in the Adelaide Magistrates Court and the matter was remanded to enable the 000 tape to be recovered by the prosecution.

On 2 March 1997 the solicitor received a facsimile transmission from Sergeant Lucas. That facsimile transmission included a statement from Norman Duncombe-Wall. In that statement Mr Duncombe-Wall said as follows:

"I made my way down to the telephone and was followed by my father. I assumed that he had calmed down so I didn't call the police. I went back to my room. I was confused. I again heard my father shouting and my mother was at my door telling me to phone the police.

I went to the telephone and dialled. My father was shouting at me telling me that I should keep out of it and not phone the police. He hung up the telephone as I tried to dial. I then dialled again and he again tried to cancel the call. I pushed him away. My father started ranting that I had hit him and told that I wasn't to do that. I paid no attention and made the telephone call.

He ran from the room and picked up another telephone and completed the call himself. Police later arrived."

"I am supplying the statement of Norman Duncombe-Wall. In view of his statement, a transcript of the "000" phone call is unnecessary, and I do not intend to pursue that line of enquiry further."

That letter was responded to on 3 March 1997 in the following terms:

"I refer to your facsimile transmission of 2nd March.

I require the transcript. My client asserts that it was he who telephoned "000".

Again the request is entirely unambiguous. The prosecution was put on notice that, contrary to the evidence of Mrs Duncombe-Wall and her son, it was the defendant's case that he telephoned the Police on the 000 number.

The appellant's solicitor's letters clearly indicated a significant dispute in relation to who had called the Police.

That second request was also denied. On 19 March 1997, Sergeant Lucas telephoned the solicitor and advised him that she had been instructed by her superior officer that the tape was not to be recovered. No further explanation was given.

On 21 March 1997 the matter was further remanded until 30 April 1997 for the specific purpose of enabling the appellant's solicitor to issue a subpoena for the production of the 000 tape.

A subpoena was issued on 26 March 1997 made returnable for 30 April 1997. The subpoena was served on the same day.

The subpoena was directed to the Commissioner of Police requiring him to attend on that date to:

2. produce the evidentiary material specified in the subpoena.

The evidentiary material specified in the subpoena was:

"Tape and transcript of the "000" emergency calls from 5th day of February 1997 originating from the premises situated at 312 Ironbank Road, Ironbank 5153".

On 1 April 1997 the Police solicitor wrote to the appellant's solicitor in the following terms:

I refer to the subpoenas issued in each of the above matters.

The practice within this department with subpoenas is to refer to the investigating officers to gather the material. I have made arrangements for this to happen and no doubt you will be contacted concerning the material you wish to have produced."

On 24 March 1997, after it was announced in open court that a subpoena would be issued, but before the date of service, the tape was re-used thereby obliterating the record of the conversation of the telephone calls from Ironbank.

I am told that whilst of course the reusing of the tape was a deliberate act there is nothing sinister about what occurred.

The tape was re-used because of a breakdown in communication within the Police Department.

The fact of the matter is that the prosecution was on notice very early that Mr Duncombe-Wall asserted that it was he who had made the telephone calls to the Police. Whilst the Police were not told expressly it could have been reasonably inferred that it was the defence case that the telephone calls had been made for the protection of the appellant.

They were plainly and unambiguously advised that tapes should be retained. Appropriate measures were taken at the earliest opportunity by the appellant to ensure that the tape would be maintained and be available. Notices were given and a subpoena was issued.

The prosecution seems to have taken the view that as they had evidence to support the prosecution case there was no obligation upon them to preserve evidence which might support the defendant's case.

If that was the view taken then it was wrong. The prosecution had an obligation to retain and preserve all of the evidence whether favourable or unfavourable to the prosecution case.

The prosecution, in my opinion, took a high handed attitude to what were entirely reasonable requests made by the appellant's solicitor.

They not only dismissed those requests without reasonable explanation, they allowed the evidence which was the subject matter of the request to be destroyed thereby putting out of reach of the appellant a possibly significant piece of evidence which might have affected an assessment of the credibility of the witnesses before the Magistrate.

I think, with respect, the learned Magistrate who heard the application for the permanent stay misunderstood the appellant's case.

The appellant's case was that there were two telephone calls, both of which he made. The learned Magistrate seems to have assumed that there was only one telephone call and the prosecution concession in relation to that was sufficient to obviate any hardship to the appellant.

It was put on appeal that it was essential for the fair trial of the matter that the appellant be able to establish that he and only he had contacted the Police and the contents of the telephone calls. I agree with that submission. I believe that the different accounts of the two prosecution witnesses and the appellant made it necessary for the appellant to have access to the evidence which he claims would have supported his account. I believe that if this evidence supported his account on this serious issue in the case it would have been very difficult for the learned Magistrate to have reached the conclusion that the prosecution evidence, which on this issue this evidence would have contradicted, was sufficiently reliable for a finding that the case had been made out beyond reasonable doubt.

I think the appellant lost a real opportunity to put the whole of his case to the learned Magistrate.

That opportunity could not have been ameliorated by any action on the part of the prosecution. There was no other evidence directly on point. This was the only independent objective evidence available to the appellant. There was no direction that could have been given to the prosecution in the presentation of its case which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence.

It is no answer to the appellant's argument that this evidence was destroyed simply because of a failure of communication within the Police Department rather than for the purpose interfering with the appellant's fair trial. The purpose is not important. The end result is. Of course, if the evidence had been destroyed to deny the appellant a fair trial then an order would have gone immediately.

Having regard to the efforts to which the appellant went to ensure the preservation of the evidence, and the failure of the respondent to prevent the destruction of the evidence, and the importance of that evidence in the assessment of the credibility of the witnesses in a case in which credibility was all important, this is one of those rare cases where an order ought to be made.

If there was anything that could be done to ameliorate the unfairness to the appellant then it would be appropriate to make orders accordingly. But that is not possible in this case. The evidence cannot be retrieved. There are no witnesses who are able to depose to the circumstances, but even if there were that may not be enough. The evidence is lost for all time.

A procedural order staying or dismissing an information as an abuse of the Court's process will only be made where there is good and sufficient reason. Such an order is only made sparingly: Holmden v Bitar; Crawford v Bitar [1987] 47 SASR 509. A Court has jurisdiction to stay proceedings where the prosecution of the criminal proceeding will result in a trial which is unfair: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 95-96.

In R v Lord and Fraser (1983) Crim LR 191 engines which formed the subject matter of criminal proceedings were left by the Crown unassembled and open to the elements such that their condition deteriorated. It was conceded that the actions of the Crown's experts and police officers had resulted in the mixing of various parts such that it was impossible to say which parts belonged to which engine. It was conceded that any attempt by the defendant's consulting engineer to examine the engines would have been 'valueless'.

In these circumstances the defendants sought a stay on the grounds that to permit the Crown to proceed would be an abuse of process having regard to the long delay and the deterioration of the exhibits both of which rendered a fair trial impossible and to continue the proceedings would be oppressive to the defendants.

The Court ordered a stay of one count on the ground that to permit the Crown to proceed would be an abuse of process and oppressive to the defendants. The intentions or motives of those responsible for the prosecution were irrelevant since a combination of circumstances can arise entirely innocently but as a result it would be oppressive to proceed. In any event the Crown has been negligent in their handling and treatment of the exhibits.

In the circumstances of this case the destruction or the obliteration of the evidence was such as to lead to unfairness and, in my opinion, was such as to justify a permanent stay of the criminal proceedings. There was nothing that could have been done to rectify or remedy the absence of the evidence: Jago v District Court Of New South Wales [1989] HCA 46; (1989) 168 CLR 23.

Notwithstanding an absence of bad faith on the part of the prosecution, this is a matter which in my opinion in fairness dictates that a permanent stay should be ordered.

I would allow the appeal. I would set aside the finding made by the learned Magistrate. I would allow the appeal against the refusal to order a stay of proceedings.

I would substitute for the orders made an order that the proceedings against the appellant be permanently stayed.