Johannsen & Chambers v DPP [1996] QCA 111

At about 10 p.m., the appellants arrived, had a discussion with some of those present and then left the house. Shortly after, Iselin also left and encountered the appellants walking back towards the house. Mrs Chambers had a rifle. At Iselin's request, the appellants agreed to leave and Iselin turned away. She heard a shot and went upstairs. Later, the victim, who had been shot, was seen lying near the front stairs. According to Iselin, she saw the appellants walk out to the street. Neighbours heard a noise or noises which were thought to be gunshots, and some neighbours saw a motor vehicle, which some thought was a 1963 or 1964 Holden sedan, drive away carrying at least two persons.

Dunemann, who had initially denied being present at the premises at the material time, has now stated that she saw the appellants, overheard them speaking to Iselin but not what they said, and heard a gunshot; her statement is generally supportive of Iselin's evidence, but there are inconsistencies.

Both Mr and Mrs McIntosh are now dead; the dates of death are not before the Court but presumably it was a considerable period after the victim was murdered. In statements made in 1974, they said that they neither heard nor saw anything suspicious on the night of 18 February, and that when they last saw the victim he was uninjured and said that he was going out for a short time. Delaney and Sproule deny any knowledge of a gunshot or of an injury to any person while they were at the premises. Initial statements by Iselin and Dunemann did not implicate the appellants, although Iselin gave a statement implicating the appellants in August 1974. Dunemann gave her statement implicating the appellants, although not so directly as Iselin, for the first time in 1993 and subsequently in 1995.

The statement which Dunemann gave to the police in 1974, and the appellants' records of interview in August 1975 are missing, as are the results of an examination of the victim's motor vehicle.

On 21 February 1974, the premises at 100 Sydney Street, New Farm were examined by Inspector Bardwell, a police scientist who is now deceased, but, except perhaps for a small amount of blood on a bedroom wall, nothing possibly significant was found.

On 11 March 1974, Iselin's Datsun sedan was examined by Mr Wilbur Smith, Government Bacteriologist (who is now deceased) and his assistant, and a very small particle of Group O blood was found. At least 70% of persons have Group O blood.

The records of the results of the examination of the premises at 100 Sydney Street, New Farm and Iselin's motor vehicle are now missing.

The police investigation was conducted by various detectives, a number of whom are now deceased, and was recorded on running sheets; however, the running sheets from June 1974 to early 1975 are now missing, as are most, if not all, of the material police notebooks and numerous records of interview with Brisbane painters and dockers. Detective Cross, who conducted those interviews, is dead.

Additional evidence which the prosecution would have sought to lead against Mrs Chambers, based on statements she is alleged to have made to two women, Ms Garber and Ms Porter, on 19 and perhaps 20 February 1974, is now of no significance. Hence, there is no significance in other evidence related to the movements of the appellants on 19 February 1974, since it is not in dispute that they left Brisbane that day. Mrs Porter also possibly refers to statements by Mr Johannsen, but her evidence is of little, if any, significance, and inconsistent with the prosecution case as to the appellants' whereabouts at the time of the alleged conversation.

An inquest was opened on 31 January 1975 but adjourned to a date to be fixed to permit further police investigations. No evidence was ever called and the inquest was never resumed. On 23 March 1993, the Coroner requested further police investigations, which led to the appellants being charged on 5 July 1994. The only additional evidence available to the prosecution is Dunemann's new statement, which is, in a general sense, corroborative of Iselin's evidence.

"These applications, which by consent were heard together are based upon the principles explained in Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23 and Walton v. Gardiner (1993) 177 C.L.R. 378.

The applicants say first that the proceedings are so unfairly and unjustifiably oppressive as to constitute an abuse of the process of the Court, and secondly that because of the lapse of time between the alleged offence and the laying of the charges the accused cannot now have a fair trial and no alternative remedies to a stay can overcome the prejudice caused by the delay. I should add that there was no suggestion that the proceedings had been brought for an improper purpose.

The submission that the proceedings are oppressive is based on the contention that the inference can be drawn that following the investigation in 1974 a decision was made not to proceed against the accused and that to do so now in the absence of a proper explanation of the delay is oppressive.

Clearly enough on the evidence before me no decision was made before 1994 to charge the accused with the deceased's murder. Whether a decision had been made before then not to charge the accused is not revealed. The most likely explanation for what has happened is, I think, that the investigation simply petered out through lack of diligence after the case went to the coroner. Once it was re-opened some further evidence came into the hands of the investigators in the form of Dunemann's fresh account. Even if a decision was made in 1974 or 1975 not to charge the accused it would not be improper or oppressive to proceed against the accused if new, cogent evidence came to light after the decision. That is what has happened here. It might, of course, be argued that had the investigation been resumed earlier the change in Dunemann's account may have come to light earlier. While that is possible it seems to me that it is more likely that a lengthy interval was required to bring about her change of mind.

The delay between 1975 and 1993 has resulted in the fading of the memories of witnesses, a number of whom said so in the committal proceedings. As I have related, relevant evidence has disappeared and witnesses have died. All of those circumstances will mean that it is more difficult now to ensure that the accused have a fair trial than it would have been had the case been heard in, for instance, 1975.

The adverse effects of the passage of time can be mitigated, however, in this case in two ways. First, the Crown has offered to admit certain facts including statements made to police officers by Mr and Mrs McIntosh, the substance of Dunemann's 1974 account, the results of examinations of the motor vehicles and the house, ... . Many of those matters were recorded in a journal of running sheets compiled by police officers which recorded details of the investigation. There are also other documents, including a note which became Exhibit 7 before me, recording facts relating to the investigation. I should mention that under section 644 of the Criminal Code the Crown may be its counsel admit on the trial of an accused any fact relevant to the trial where the accused is in agreement with this being done and such admission is sufficient proof of the fact without other evidence. The second way in which the effects of delay can be mitigated is by appropriate warnings to the jury.

The absence of the records of the 1974 interviews with the accused cannot be cured by admissions by the Crown but so far as they may have contained admissions only the Crown case has been diminished by their absence, and if they contained self-serving statements the accused could not have placed them before the jury in any event. Any difficulty caused by the absence of Mr Griffiths' notebook can, it is reasonable to conclude, be reduced by resort to the running sheets and other records.

While the measures I have mentioned will not, and cannot, remove all the adverse effects of the unexplained dilatoriness in pursuing this matter it must be borne in mind that a decision on applications of this sort requires a proper balance of the interests of the accused and the public interest. The power to grant a permanent stay, which is discretionary, will be used only in most exceptional circumstances in criminal proceedings; a case must be an extreme one to warrant a permanent stay: Jago v. District Court (N.S.W.) supra at pp. 31 and 34 per Mason C.J.

While the accused clearly have some justifiable cause for complaint that this matter has, after such a long delay, been brought up again, in my view the case is not so oppressive and the effects of the delay in eroding the available evidence are not so grave as to warrant the drastic step of imposing a permanent stay on the proceedings. The applications are refused."

I disagree with two inferences which his Honour drew. While I do not place much weight on the appellants' submission that there might have been additional evidence exculpating the appellants which has been lost, in the absence of any indication that the police had identified future lines of investigation at the beginning of 1975 I infer that the investigation did not simply peter out through lack of diligence, but that it was at least implicitly decided not to charge the appellants on the evidence then available. Further, there is, in my opinion, no basis for an inference that Dunemann might not have given her present account if approached earlier. I also question his Honour's description of the new evidence now available to the prosecution as "cogent". The only other preliminary observation which needs be made is that the "admissions by the Crown", to which the trial judge made reference, are covered by the summary of the prosecution case set out above.

The prosecution case is substantially based on the statements of Iselin and, to a lesser extent, Dunemann, each of whom earlier gave inconsistent statements which did not implicate the appellants. A jury which did not accept Iselin's evidence of her observations prior to hearing a shot and that she heard a shot and saw the victim lying near the front stairs at 100 Sydney Street, New Farm could not convict Mr Johannsen, whose involvement remains unclear and apparently very limited. Iselin's evidence does not describe events which could explain the medical evidence that the victim was severely beaten before he was shot. Other evidence from persons who were present at the premises at the material time favours Mr Johannsen. To some extent at least, so would the evidence of Mr and Mrs McIntosh, whom the jury cannot now see and hear and, where appropriate, compare in credibility to Iselin and Dunemann.

As the trial judge correctly recognized, there is a strong public interest in the prosecution of serious offences and the conviction of offenders. However, that proposition must be qualified; the public has a superior interest in ensuring that judicial processes are not abused, that accused persons' trials are fair to them (cf. Dietrich v. R. [1992] HCA 57; (1992) 177 C.L.R. 292; Yuill (1993) 69 A.Crim.R. 450, 452-3, O'Neill (C.A. No. 435 of 1994, 4 August 1995)), that innocent persons are not convicted and that public confidence in the administration of justice is maintained. In substance, the appellants' grounds of appeal were based on two propositions; that they cannot now be tried fairly, and that their prosecution is an abuse of the process of the Court. The oppression said to constitute an abuse of process not only includes the assertion that the trial will be unfair, but is said to result from the following factors:

(ii) although the delay was not deliberate, the prosecution was solely responsible for the delay;

(iii) the appellants have been prejudiced by the delay: additional evidence has become available to the prosecution, while evidence favourable to the appellants has become unavailable: further, memories will have faded and witnesses' recollections are likely to have become distorted: and cross-examination will be considerably more difficult;

(iv) the prosecution case is little stronger than it was 20 years ago;

(v) the prosecution case is weak; for example, the prosecution is prepared to admit that Mr and Mrs McIntosh said that they heard and saw nothing suspicious - and there is no suggestion that the prosecution would, or could, invite the jury to disbelieve that evidence - and there is no physical evidence to suggest that the victim was killed at the New Farm premises and later removed from there, presumably by vehicle.

It was submitted for the prosecution that any prejudice to the appellants could be eliminated or alleviated by rulings on evidence and directions by the trial judge to the jury, but the appellants countered that there would continue to be significant prejudice and that directions in favour of the appellants would further weaken an already weak prosecution case, probably fatally.

Although the power to stay criminal proceedings as an abuse of process has been generally accepted in Australia only comparatively recently, it is now well-established. I discussed many of the recent High Court cases in my dissenting judgment in O'Neill. While examples of abuse of the criminal process and the governing principles are likely to continue to develop (Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, 74; Walton v. Gardiner (1993) 177 C.L.R. 378, 394), the starting proposition is that a prosecution will be stayed as an abuse of process only in "exceptional or extreme" cases: Walton at p. 392; Drozd [1993] QCA 224; (1993) 67 A.Crim.R. 112. The least controversial basis for a stay is that a prosecution has an improper purpose: cf. Williams v. Spautz [1992] HCA 34; (1992) 174 C.L.R. 509, 518-519. Despite authoritative dissent, especially from Brennan C.J., other generally accepted bases for staying criminal proceedings as an abuse of process are that the prosecution "can be clearly seen to be foredoomed to fail" (Walton pp. 393, 411), or that there is no possibility of a fair hearing (see Jago at p. 29; cf. Williams), whatever steps are taken by the trial judge to avoid unfairness: Drozd.

Before proceeding, it is necessary to notice a semantic point which can cause confusion. For example, in Dietrich at p. 365 Gaudron J. adopted a broad view of what constitutes an unfair trial, saying that a criminal trial is unfair if it involves the risk of an innocent person being improperly convicted, i.e., of a miscarriage of justice. See also her Honour's dissenting judgment (at pp. 382-385) and Deane J.'s dissenting judgment (at pp. 375-378) in Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365. Given that the High Court is by no means united on the proposition that an unfair trial always necessarily involves a miscarriage of justice (see the discussion in O'Neill), it seems desirable to add a category to the criminal prosecutions which can be stayed as an abuse of process to include prosecutions which, by reason of delay or other fault on the part of the prosecution, would, if successful, result in a miscarriage of justice because of a significant possibility that the convicted person is innocent. I have included the reference to delay or other fault on the part of the prosecution because of the decision of the High Court in Doney v. R. [1990] HCA 51; (1990) 171 C.L.R. 207.

The present case does not require a decision that every disadvantage to which an accused person might be exposed in the conduct of his or her defence makes the prosecution an abuse of process. There are many circumstances which can occur in the course of a criminal trial which are potentially detrimental to the accused; for example, a favourable witness might be dead or unavailable, not be a compellable witness, successfully claim privilege against giving evidence, or simply refuse to cooperate. Any question of validity aside, the legislature has from time to time introduced procedures which can operate to an accused's disadvantage: see, for example, Part II Division 4 of the Evidence Act 1977. Aspects of even criminal trials may be held in private or publication of details suppressed: see J. v. L. & A. Services Pty Ltd (C.A. No. 135 of 1992, 15 February 1993); cp. Carter v. Managing Partner, Northmore, Hale, Daly and Leake (1995) 129 A.L.R. 593 at pp. 616-617 per Toohey J. The latter case provides a striking example of potential disadvantage to an accused person; material was protected from disclosure for the purposes of his trial by the doctrine of legal professional privilege, although Toohey and Gaudron JJ. dissented and one of the majority, Deane J. recognised (at p. 604) that "if there were ever a case where it became apparent that refusal of access precluded a fair trial, it would be possible to invoke the inherent power of the courts to stay proceedings". On this occasion, a critical factor in assessing whether or not the prosecution of Mr Johannsen is an abuse of process is that such disadvantages as would exist in the conduct of his defence are accepted by the prosecution as the direct consequence of not charging him with the offence on which it is sought to make him stand trial until 20 years after the offence was committed. In the present context, any unfairness in Mr Johannsen's trial, and any significant risk that his conviction would be a miscarriage of justice, are directly related to the prosecution's delay. There is no suggestion that he caused or contributed to the delay; for example, by threatening potential prosecution witnesses.

Since as far back as the Statute of Limitations of 1623 (21 Jac 1c 16), there have been statutory limitation periods applicable to some civil proceedings, and modern rules of court commonly include provisions for dismissal for want of prosecution and requiring leave to renew a writ which has not been served or to take a fresh step after a period of inactivity. In Queensland, there are no comparable restrictions on the prosecution of murder charges. However, the court's power to deal with delay in its civil jurisdiction is not limited by legislation and rules. Equity developed defences such as the equitable principles based on analogy to statutory limitation periods and the doctrines of laches and acquiescence (see, generally, Meagher, Gummow & Lehane "Equity Doctrines and Remedies" Chs. 34 and 36), and superior courts of record, at least, assert an inherent jurisdiction to complement specific rules to deal with impermissible delay. While there are also other elements of public interest involved in these matters, for example the desirability that litigation be brought to finality, there is an underlying broad acceptance that inordinate delay involves a risk of abuse of process; because stale allegations are difficult to defend, delay commonly causes prejudice to those against whom such allegations are made. The most obvious and usual prejudice concerns lost evidence, e.g., through the death of witnesses, the failure of memories or faulty recollection, the loss or destruction of documents and reduced opportunities for effective cross-examination: see, for example, Orr v. Ford [1989] HCA 4; (1989) 167 C.L.R. 316, 330; William Crosby & Co. Pty Ltd v. The Commonwealth [1963] HCA 6; (1963) 109 C.L.R. 490, 495, 496; Herron v. McGregor (1986) 6 N.S.W.L.R. 246, 254; Gill v. Walton (1991) 25 N.S.W.L.R. 190 (although the decisions in Herron and Gill in the New South Wales Court of Appeal must now be read subject to the decision of the High Court in Walton).

Frequently when delay and its adverse consequences are material in civil proceedings there are other factors to be considered and a balancing process is called for. Similarly, it might be suggested, the public interest in the conviction and punishment of serious offences must be set against prejudice caused by delay in the prosecution of such offences. However, that overlooks the vital considerations that the paramount public interest in the exercise of the court's criminal jurisdiction is the avoidance of injustice, and the unequivocal acceptance that a significant possibility of wrongful conviction involves a miscarriage of justice: see, e.g., O'Neill and the cases there referred to. It would be surprising, to say the least, if the civil justice system afforded more protection against the consequences of delay to civil litigants than the criminal justice system affords to accused persons who are presumed to be innocent.

Nonetheless, some judges, including Brennan J. (as his Honour then was) and Toohey J., do not accept that proceedings which can be fairly tried can legitimately be stayed as an abuse of process because of delay and its consequences (see Walton at pp. 414 per Brennan J. and at pp. 417-420 per Toohey J.; cp. Toohey J. in Ridgeway v. R. [1995] HCA 66; (1995) 129 A.L.R. 41, 71). However, a considerably wider view expressed by Deane J. in Jago at p. 58 was endorsed by the majority in Walton at p. 394. Although the particular examples there given are of no direct relevance, the general principle was expressed by Deane J. in Jago in the following terms:

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. ..."

I respectfully concur in that view, and his Honour's elaboration of his views in Jago at pp. 60-61. Those statements seem to me consistent with and support my opinion that a prosecution should be stayed as an abuse of process if delay or other fault for which the prosecution is responsible involves a significant risk of the conviction of an innocent person. I leave for future consideration how this approach will develop in connection with prosecutions based on memories which are said to emerge years after alleged offences were committed.

While there would be a heavy burden on the trial judge to take great care in his or her rulings on evidence and directions and warnings to the jury in a trial of Mr Johannsen, that responsibility has been lessened now that the potential complications associated with the conversations with Ms Garber and Ms Porter and associated issues related to the times and places of the appellant's movements on 19 and 20 February 1974 are irrelevant or, in the case of the evidence of Ms Porter, of minimal if any relevance. Further, no witness is dead or missing who could certainly significantly assist the appellants. Mr and Mrs McIntosh, for example, have said that they did not see or hear anything suspicious, including the gun shot or gun shots mentioned by neighbours, but their statements do not necessarily conflict directly or significantly with the evidence of Iselin and Dunemann; that is to say, the evidence of Mr and Mrs McIntosh that the victim told them that he was going out but they did not see him leave or hear a gun shot does not necessarily indicate that he was not shot downstairs by Mrs Chambers, and the doubt which their evidence that they did not hear a gunshot might otherwise create must be considered with the evidence of what neighbours heard.

While I accept that an appellate court should show deference to a decision by a primary judge based on a balancing of competing factors, I am satisfied that in this instance the primary judge made factual errors, that the circumstances are materially altered by the death of Mrs Chambers and the effect her death had on the evidence available to the prosecution and that his Honour erred in principle in the test which he applied.

Nonetheless, regard to a number of modern cases has left me in some doubt concerning whether this is such an "exceptional or extreme" case as to warrant a stay; there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of miscarriage of justice. See, for example, Barron v. Attorney-General (N.S.W.) (1987) 10 N.S.W.L.R. 215; Wagner [1993] SASC 4016; (1993) 66 A.Crim.R. 583, 594 ff; Drozd p. 115; cf. R. v. Sandford (1994) 33 N.S.W.L.R. 172, 180-181; D.P.P. (Cwlth) v. Bayly [1994] SASC 4842; (1994) 126 A.L.R. 290. A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted.

However, I cannot escape the conclusion that it would be unduly oppressive to proceed against Mr Johannsen at this time after so long an unexplained delay for which the prosecution is entirely responsible. In part, the critical difficulty stems from the very circumstance that the information still available is so limited and superficial that it is, and will continue to be, impossible to know whether there would be vital conflicts in the evidence of important witnesses because so little is known and so many prospective witnesses are dead. To take but one example, the respective times at which Mr and Mrs McIntosh saw the victim alive and at which Iselin and Dunemann say they heard the fatal shot (on the prosecution case) can simply never be tested and the jury cannot see and hear and, where appropriate, choose between the witnesses. Added to that, is that the prosecution case is critically dependent on two witnesses, Iselin and Dunemann, each of whom is not beyond criticism even taking account only of the different versions each has given over the years. Further, there is virtually no evidence against Mr Johannsen beyond his presence, if Iselin and Dunemann are believed, without any indication whether he had any forewarning that Mrs Chambers intended to kill the victim or commit some other crime involving the risk of violence.

Mrs Chambers' appeal is dismissed as a formality. Mr Johannsen's appeal should be allowed and a permanent stay granted on the indictment for the murder of Joel John Wlodarczyk which has been presented against him on the footing that the prosecution of the indictment would be an abuse of process.

In this appeal I have arrived at a conclusion different from that of Fitzgerald P. and Thomas J., whose reasons for judgment I have had the advantage of reading.

In Walton v. Gardiner (1993) 177 C.L.R. 378, 395-396, Mason C.J., Deane and Dawson JJ. said that the question whether criminal proceedings should be permanently stayed as an abuse of process "falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations". Their Honours added that among those factors "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".

From what was said there, it is evident that the question whether criminal proceedings should be stayed is pre-eminently a matter for the discretion of the primary judge who hears the application for a stay. In this instance the learned judge refused the application for a stay after a hearing extending over two days, in the course of which an extensive array of material was presented and detailed submissions, occupying some 150 pages of transcripts, were made upon it. The material included a full transcript of the evidence, including cross-examination of witnesses, at the committal proceedings covering more than 200 pages, as well as witness statements, and other documents compiled in the course of police investigations. In the course of his reasons, his Honour referred to the decision in Walton v. Gardiner and to the principles explained there and in Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23. It is not suggested that in reaching his conclusion, his Honour in any way misapplied those principles.

In the absence, therefore, a demonstrated error in relation to some material fact, I do not consider that it is open to this Court, acting on the principles that govern appeals from decisions involving the exercise of a judicial discretion, to reverse the decision appealed from. As to matters of fact, each of the notices of appeal identify two grounds of complaint. One is that the judge ought have found that in 1974 or 1975 the police officers investigating the murder made a decision not to charge the appellants; the other that, when the appellants were charged in 1994, there was no new and cogent evidence that would have justified a reversal of that earlier decision. Both these grounds of appeal can be seen to depend for their success on a finding that a firm decision not to charge the appellants was made in or before 1975. As to that, his Honour said:

"Clearly enough on the evidence before me no decision was made before 1994 to charge the accused with the deceased's murder. Whether a decision had been made before then not to charge the accused is not revealed. The most likely explanation for what has happened is, I think, that the investigation simply petered out through lack of diligence after the case went to the coroner. It should have been pursued more diligently but it was not. Once it was re-opened some further evidence came into the hands of the investigators in the form of Dunemann's fresh account. Even if a decision was made in 1974 or 1975 not to charge the accused it would not be improper or oppressive to proceed against the accused if new, cogent evidence came to light after the decision. That is what has happened here. It might, of course, be argued that had the investigation been resumed earlier the change in Dunemann's account may have come to light earlier. While that is possible it seems to me that it is more likely that a lengthy interval was required to bring about her change of mind."

I am not persuaded that, in this passage or elsewhere in his reasons, his Honour was mistaken in any of the findings which he made, or the inferences which he drew from them. In order to understand the change in Ms Dunemann's account of what had happened, it is relevant to notice that at the time of the murder in 1974 she and the appellants were associates of a criminal element among the painters and dockers. In 1974 Ms. Dunemann was acting as a receiver of goods stolen by those persons. For some reason, according to her evidence, this aroused the resentment of the appellant Pamela Chambers, who, shortly before the murder on the night of 18 February 1974, threatened Ms. Dunemann with a firearm, which the appellant carried in her handbag. On the night in question Ms. Dunemann was afraid for her own safety because she had reason to believe that the appellant Chambers was "after her". In the third statement (dated 2 March 1995) of the four statements which she gave between 1993 and 1995, she refers to having seen the deceased leave the house at 100 Sydney Street, New Farm and walk out to the front of it. At that time the two appellants themselves were at the house, but were turned away by the owner or occupier Jeff McIntosh, who said that he did not want trouble there. A short time afterwards Ms. Dunemann said she heard a gunshot. At that, she became very frightened and left the house to go home. When asked at the committal hearing why, in her statement given to the police in 1974 or 1975, she had not mentioned these details, she said in reference to Ms. Chambers:

"She'd already shot one person and she wanted to shoot me, so I wasn't going to say anything; but I've grown up now and what I've said here is the truth."

In answer to a further question in cross-examination, Ms. Dunemann said that she was also frightened of a number of the painters and dockers, but mainly of Ms. Chambers.

Ms. Dunemann's later accounts given in 1993 to 1995 of what happened on the night in question in 1974 are fairly capable of being regarded as new evidence. What she now says has cogency, particularly if one accepts her claim that she had not previously told the police about what happened because of her fear of retribution from Ms. Chambers or perhaps from one or more of her painter and docker associates. If that is so, then it affords a rational explanation of why she did not speak out earlier and why the police were not in a position to proceed with the murder charge without having evidence of the kind she is now prepared to give. In the state of the available evidence, as it was in 1975, it was not unreasonable to suppose that a charge of murder against the two appellants would not have succeeded. In that event the appellants would probably have been acquitted and could not have been charged again even if further evidence against them became available subsequently. The result would thus have been that, by inspiring in Ms. Dunemann a fear for her own life or safety, the appellants would have succeeded in avoiding, as they now claim to do, the threat of prosecution for a murder which they may have committed.

It is not easy to see that either society in general or the administration of justice has much to gain from promoting conduct of that kind. If criminal proceedings are stayed because witnesses have died or their recollection of events has faded, then it will only encourage persons of violent or criminal disposition to terrorise witnesses in order to silence them for as long as possible. The tendency will be to increase rather than suppress lawlessness in the community. That is no doubt one reason why the principle which has been adopted is that it is only in exceptional circumstances that the court ought to exercise its power to stay criminal proceedings: see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, 31; and also Drozd [1993] QCA 224; (1993) 67 A.Crim.R. 112.

Viewed in this light, the present case is not one in which the circumstances are exceptional. It is true that many witnesses have died since the murder was carried out some 20 and more years ago. However, that is as much a problem for the prosecution as it is for the appellants. At the trial the Crown will be bound to prove its case beyond reasonable doubt. Before a jury, a great deal may be made of the frailty of the evidence against the appellants after the lapse of so long a time. Conducting the trial of stale cases presents some obvious difficulties; but in practice cases of that kind are by no means unknown in the courts. Examples with which we are familiar are prosecutions long after the event for sexual offences against children, or for atrocities committed during World War II. Far from obstructing prosecutions of the latter kind, Parliament has, despite the very long delays and difficulties involved, recently acted to facilitate them: see War Crimes Amendment Act 1988 (Cth); Polyukhovich v. Commonwealth [1991] HCA 32; (1991) 172 C.L.R. 501. The problems of reliable identification evidence are notorious. They become prodigious when the trial concerns persons and events that occurred 50 years ago in far-off Ukraine; but that was not held to be sufficient to justify a stay of prosecution in the case of Heinrich Wagner [1993] SASC 4016; (1993) 66 A.Crim.R. 583. In the case of sexual offences against children, statutory time limits formerly imposed for prosecutions under ss.212 and 215 of the Criminal Code have in Queensland recently been either abolished or extended.

I do not, with respect, consider that any useful comparison can be made with civil actions or the principles on which they are commonly stayed or limited. Except in the case of simple offences, limitation periods, similar to that imposed in s.52 of the Justices Act 1888, have not generally been adopted in common law countries in criminal proceedings for offences of a more serious kind. In the United States, where in many jurisdictions statutory limitation periods have been applied to criminal offences, they have almost invariably excluded the crime of first degree murder. From a survey published in the University of Pennsylvania Law Review, vol. 102, at 630, 652-653, it appears that, of 48 states in 1956, it was only New Mexico that prescribed a limitation period (which was 10 years) for murder prosecutions. Continental legal systems may differ in this particular; but in their case there are procedures for prosecution and trial in absentia. Continental criminal procedure is so very different that it does not bear comparison with our own.

Some time after the appeal was heard, we were informed that the appellant Chambers had died. The prosecution case against her appears to have been stronger than that against the other appellant Johannsen; but there is evidence from Ms. Iselin that is capable of implicating Johannsen in the murder. The principal utility of Ms. Dunemann's recent statements is that they contain material which, if accepted, may be thought to corroborate in some particulars what Ms. Iselin said about events on the night in question. The case against Johannsen remains a circumstantial one; but, at the trial, it will be a matter for the jury and not the judge to assess the quality, as distinct from the sufficiency, of the testimony: Doney v. The Queen [1990] HCA 51; (1990) 171 C.L.R. 207; and it will also be for the jury, and not the judge, to determine whether the prosecution has succeeded in excluding every reasonable hypothesis consistent with innocence: R. v. Stewart, ex parte Attorney-General [1989] 1 Qd.R. 590. If, at the trial of an indictment, questions like that are not within the province of the judge, it would be surprising if in a case like this they fell to be determined by a judge before the trial has even commenced.

These are appeals against the refusal of a Trial Judge to grant a permanent stay of proceedings upon an indictment charging the appellants with the murder of one Wlozarczyk at Brisbane on 18 February 1974. That charge was first brought against them on 5 July 1994, more than twenty years after Wlozarczyk's death. In the interim several potential witnesses have died. It is not suggested that any conduct by the appellants has contributed to the delay.

The question whether the continuance of the proceedings would be so oppressive and whether the prospect of the appellants now having a fair trial is so dubious that the further prosecution of the proceedings should be regarded as an abuse of process of the court, appeared during argument to be a finely balanced one. Since reserving its decision the Court has been informed that the appellant Chambers has died. It will therefore be appropriate that her appeal be dismissed, leaving only the question whether further proceedings against the appellant Johanssen should be stayed.

The case against Chambers and Johanssen was that they were seen to be in company with one another at a time and place which would have provided them an opportunity for one or other of them to have fired the fatal shot, with surrounding circumstances said to amount to a circumstantial case that they must have acted in concert or in aid of each other. It is fair to say that the available case against Chambers was stronger than that against Johanssen. The case against Chambers included a statement she made to a companion soon after the event that the deceased was going to shoot her and that the deceased had a gun. This is said to be a basis for inferring some animosity or motive on her part to harm the deceased.

An overview of the matter appears from the reasons stated by the learned Trial Judge.

". . .On February 20, 1974, the deceased's body was found floating in the Brisbane River near the wheat wharf at Pinkenba. A post-mortem examination revealed lacerations to the scalp, face and left thigh, a fracture to the front of the skull, a gunshot wound to the neck, and a wound on the left side of the abdomen. The doctor who carried out the post mortem examination concluded that death was caused by the gunshot wound, and that the deceased's body had been in the water for some time.

A police investigation followed, and particular attention was paid to a gathering of people on the night of February 18, 1974, at a house which was the residence of Jeffrey and Roma McIntosh in Sydney Street, New Farm. The Crown proposes calling evidence that those at the gathering were the deceased, Mr and Mrs McIntosh, Douglas Sproule, Lynette Duneman, Mavis Iselin, David Dowling, and the accused.

The Crown case is a circumstantial one that the deceased was shot at the Sydney Street premises with a rifle seen in the possession of the accused Chambers immediately before his death. One of the accused murdered the deceased by shooting him, the Crown says, and the other was a party to the offence either by operation of s.7 of the Criminal Code or by operation of s.8.

Statements were taken from a number of people, including Duneman and Iselin. The accused were interviewed in Adelaide on August 3, 1974, but no-one was charged with any offence in connexion with the deceased's death before a coroner's inquest was formally opened on January 31, 1975. On that day the inquest was adjourned to a date to be fixed to enable further police investigations to be carried out. No evidence was taken and no formal documents were tendered. The inquest never resumed.

There is no evidence of there having been any further investigation of the deceased's death, and no one was charged in connexion with it, before the matter was re-opened in 1993. The accused were charged in 1994, as I shall relate. In 1993 it came to the attention of Mr G M Casey, stipendiary magistrate, who was then the coroner, that the coronial file was incomplete. On March 23, 1993 he requested the police Homicide Squad to continue investigations. That was done and, among other things, a fresh statement was taken from Duneman in which she gave an account of the events at the gathering on the night of February 18, 1974 which, if accepted, could corroborate an account of those events given by Iselin in 1974. Duneman's 1974 account was, in effect, a denial that she had been at the gathering, and so was not capable of corroborating Iselin's account of what happened at Sydney Street.

On July 5, 1994, the accused were charged with the murder of the deceased.

In short the Crown case is that there was a gathering at Mr McIntosh's house at 100 Sydney Street, New Farm on the night of 18 February 1974, that the deceased Wlozarczyk was fatally shot there at about 10 p.m. and his body removed by someone. Eight persons are said to have been at the house that night in addition to the deceased, namely:

(iii) Paddy Delaney AKA David Richard Dowling ("Dowling")

At the time of the police investigation the only person whose statement implicated the accused in any way was Mavis Iselin. It is not known whether she signed any statement in 1974, but the nature of the information she provided can be deduced from police running sheets that have been retained. However on 1 April 1995, more than twenty years after the events, she provided a signed statement which is now the foundation of the Crown case. It is to the effect that the above persons were at the house, that the accused persons left the house and that she (Iselin) followed soon after. She met them walking back towards the house and she saw that Chambers had a gun. She spoke with them, in the course of which Johanssen pushed Iselin lightly with his left hand at one point, saying "It's a gun and it's loaded. Get away you fool." Chambers said that she did not want any trouble and that they had all had an upsetting day. Both accused said "What about the 'shit' that had been put on them". Both accused walked back to the road with Chambers carrying the gun. Iselin continues "When they reached the front, I waited for a very short time to make sure they weren't returning and I then turned with the intention of walking up the back stairs and I hadn't taken a step when I heard the sound of a loud explosion.". She went upstairs and later the deceased was found near the front stairs.

Duneman gave a statement to the police on 4 May 1993 which gives some support to Iselin's account, although it contains some inconsistencies. Significantly, Duneman had given a statement to the police in 1974 which did not implicate either accused person. She does not now remember the circumstances of the giving of the original statement. Her present statement is that she was upstairs at all relevant times. She saw the two accused leave and heard the voices of Iselin and the two accused speaking downstairs although she does not know what was said. According to her Iselin came back up the stairs and was in the house when she heard a gunshot. Duneman immediately left the house but did not see the deceased or the accused.

Mr McIntosh is now deceased. He supplied information to the police which can be summarised by means of running notes. His account would have been helpful to the accused. Indeed it was that he last saw the deceased alive and well, that the deceased stated he was going out and that he heard no gunshot. This account would cast serious doubt upon the whole basis of the Crown case. The Crown has offered to attempt to overcome this difficulty by offering to admit the statement in the running notes. However in my view potentially considerable disadvantage still remains from the defence point of view if the trial were to proceed on this basis.

Mrs McIntosh has also died since 1974, and similar comments apply in relation to her account.

Dowling's version was that no shot was fired while he was at the premises.

Sproule's statement is to the effect that nothing unusual happened at the meeting. He cannot now even recall who was there.

A good deal of evidence exists from neighbours and persons from nearby areas as to the events of the night in question, and it is very difficult to draw a clear inference from this body of evidence. Certainly there is evidence of suspicious movements by various persons at differently estimated times that tend to support the inference that at some stage a Holden vehicle was used to remove the body. However the persons observed are for the most part described as "two male persons" and none of the evidence tends against either accused person.

The Crown case against Chambers also includes evidence from one Sue Ann Garber of admissions made to her by Chambers on 19 February 1974. She told Garber that she had been at McIntosh's house and that Johanssen had shot the deceased in the house after a "bit of a blue"; that the deceased had given Johanssen a hiding and Johanssen had gone to McIntosh's house with the intention of shooting the deceased; and that later he got rid of the body in the river by using the deceased's own vehicle. The Crown concedes that such a version could not literally be true and that it is at odds with material parts of the Crown case including some of the evidence of Iselin and Duneman upon which they would wish to rely. In any event such evidence would have been admissible only in the case against Chambers who is now deceased. It may well be that a joint trial could not have been fairly held in any event, but it is now unnecessary to pursue this. The alleged statement was never admissible against Johanssen.

The Sydney Street premises were examined by Inspector Bardwell, and apart from a small amount of blood found on a bedroom wall, nothing significant was found. Inspector Bardwell is now deceased.

The following is a list of persons who could have given relevant evidence had a charge been brought expeditiously, but who have since died:-

Mr Fenner, motel proprietor, as to movements of the accused on 19 February 1974;

Mr Wilbur Smith (government bacteriologist who conducted a scientific examination of Iselin's motor vehicle);

Detective Sergeant Cross (officer in charge of the investigation in 1974); and other police officers including Mr Gulbransen, Mr McSporen, Mr Buchanan, Mr Winter, and Inspector Bardwell;

The following is a list of some of the material which is potentially relevant but which has now disappeared:-

Records of results of examinations of the deceased's and Iselin's motor vehicles;

Records of result of examination of the house at Sydney Street;

Motel records, bank records and a bankbook relevant to an issue as to the whereabouts of the accused on 19 February 1994 (although these are probably not now relevant either to the Crown or the defence in Johanssen's case);

The notebook of Mr Griffiths (the investigating police officer primarily responsible for the search and examination of the Sydney Street premises).

Much argument was addressed to the question whether the police, although in possession of incriminating evidence from Iselin, made a deliberate decision in 1974 or 1975 not to prosecute. In my view it is more pertinent to consider the question whether a fair trial could now be had. I am not satisfied that the problems arising from these deficiencies could all fairly be overcome by the making of appropriate admissions by the Crown and by the giving of appropriate warnings to the jury. The Crown case at its best must be regarded as a marginal circumstantial case afflicted by numerous inconsistencies and competing hypotheses.

The question whether criminal proceedings should be permanently stayed on the ground of abuse of process is answered by a balancing of a variety of factors which include the requirement of fairness to an accused, the legitimate interest of the public 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 (Jago [1989] HCA 46; (1989) 168 CLR 23, 30-34, 59-61, 72, 76-78; Walton v. Gardiner (1992-1993) 177 CLR 378, 395-396). The factors that have been set out in the present case would make it almost impossible to ensure that a fair trial could now take place. The additional circumstance since the ruling of the learned Trial Judge, and since the matter was argued before this Court, of the death of the co-accused against whom the Crown had a considerably stronger arguable case than it does against the surviving accused makes the continuation of proceedings against the allegedly joint offender alone still less satisfactory and more oppressive. Whilst the possibility that Chambers might have given evidence helpful to Johanssen may be extremely unlikely it is not the only theoretical possibility that has been frustrated by Chambers' death. Shortly put, another person who was in a position either to support or deny the Crown case, has disappeared from the scene.

I am of the view that further proceedings against Johanssen at this stage would be an abuse of process and that the appeal should be allowed. There should be a permanent stay of the pending proceedings against Johanssen. Chambers' appeal should be dismissed.