Police v Rogers

[2] The accused makes application that the proceedings in respect of that Court Attendance Notice be permanently stayed. That application is based on the very considerable delay in the prosecution being brought against the accused. The accused argues that he has suffered actual and ostensible prejudice. As part of his argument the accused maintains that a witness he would have called to provide an alibi is now deceased. This, so the accused argues is the basis for arguing actual prejudice.

[3] As is ordinarily the situation in proceedings in the Local Court, I do not have the benefit of a transcript of the proceedings before me on 18 December 2006. In preparing these reasons, I am relying on my own hand written notes of the evidence.

[4] As delay is one of the arguments raised by the accused, it is appropriate therefore that I set out the chronology of this matter.

6 June 2003 Alleged incident giving rise to the charge

6 June 2003 The complainant, Mr. John Fenton attends the Inverell Police Station and makes a brief but written Statement.

2 September 2003 Const. C-L Jubb attends residence of accused, but does not speak to the accused.

19 September 2003 Const. C-L Jubb makes a telephone call but apparently was not able to speak to the accused.

20 September 2003 The officer speaks to the accused, but forms the opinion that she did not have sufficient material identifying the person to whom she spoke as the person against whom Mr. Fenton made the allegation of assault.

25 September 2003 Court Attendance Notice H18376652 averring a charge of Assault Occasioning Actual Bodily Harm created. Police Fact Sheet also created.

26 October 2003 Const. C-L Jubb attempts to speak to the complainant Mr. Fenton.

March/April 2004 The investigation of the matter is suspended.

22 March 2004 The Crime Manager at Inverell Police Station denies the application by Const. C-L Jubb to close the file.

25 and 26 October 2005 Const. C-L Jubb unsuccessfully attempts to contact Mr. Fenton, the complainant.

26 February 2006 A report on the matter is prepared for Insp. Elms. There is no attempt at this time to attempt to speak to or make contact with the accused.

4 May 2006 Permission to again suspend the matter is refused. Spoke to the complainant, who apparently, indicated that he did not wish to attend court. 27 July 2006 First return date before the Court, at which time the accused does not appear. Matter is adjourned to 17 August 2006.

[5] When the complainant, Mr. John Fenton attended the Inverell Police Station on 6 June 2003 he gave a short typed statement to Const. Candy-Lea Jubb. Mr. Fenton has apparently signed that statement. The relevant part is paragraph 3 that reads: "On the 6th June 2003, at about 2.40pm I was at the Inverell Race Course, unlocking the feed room when Brian Rogers came up to me and grabbed me and pushed me against (the) wall several times and punched me. I have fallen to the ground and he has picked me up and thrown me against the wall again and punched me again with his right hand in a closed fist. He then said to me, 'I am sick of you touching my gear'. He hit me again, I have fallen to (the) ground again and he has kicked me in the left side of my ribs while I was on the ground. After that he got in the car and left".

[6] Mr. Fenton maintained in paragraph 4 of that same statement that as a result of the alleged assault on him he was suffering from injuries to the right cheek, left ribs and right ear. Constable Jubb observed that Mr. Fenton was suffering swelling to his jaw at the time that he attended the police station to make the initial complaint.

[7] It is to be immediately observed that the assault alleged by Mr. Fenton is a relatively serious one. On the version supplied by the complainant the allegation is of an unprovoked attack, the most serious part of which was kicking while a person was on the ground. Ordinarily, persons convicted of such an assault can expect condign punishment.

[8] Constable Candy-Lea Jubb upon receiving the complaint from Mr. Fenton thereafter accepted responsibility for investigating the matter. It is my opinion that that investigation was of a most cursory nature, and in all of the circumstances, thoroughly unsatisfactory.

[9] Constable Jubb gave evidence before me on the application by the accused to have the proceedings permanently stayed. In giving her evidence the officer had access to, appropriately without apparent objection from the accused's solicitor, a set of typed notes or print out. This document was never tendered, and accordingly, I did not see that document. That document contained the dates and events that form the chronology I have set out above. If that document was a print out of the relevant police "COPS" entry, it would have been very useful in determining the precise chronology of events.

[10] According to Constable Jubb, Mr. Fenton initially was uncertain as to whether he wanted the police to pursue the matter. It was the impression of the officer that Mr. Fenton was more concerned about having the accused "kicked out" of racing. Mr. Fenton was apparently keen to show photographs taken of his injuries to the racing stewards. The officer was, according to her, waiting on the complainant "getting back" to her before she proceeded any further with the matter.

[11] Given the serious nature of the allegation, particularly the aspect of being kicked while on the ground, I find the attitude of the Constable curious to say the least. The allegation was of a serious assault, the officer had personally observed some of the injuries. The injuries were photographed at the police station. Mr. Fenton was taken away by ambulance. In the circumstances, the allegation, quite frankly warranted investigation. In matters of this nature, it is generally not for the complainant to determine whether or not criminal charges will be laid against an accused.

[12] In any event, despite the initial ambivalence of the complainant, Constable Jubb had clearly determined to commence criminal proceedings by 25 September 2003, that is, the date on which the Court Attendance Notice was created. That Court Attendance Notice, however, was not served until the middle of 2006. The Police Fact sheet, which forms part of the material before me was created by Constable Jubb on 25 September 2003. The delays and inaction from that date are, in my opinion, truly lamentable. The Fact Sheet before me was printed on 11 June 2006.

[13] Constable Jubb had the name of the accused. At one stage she spoke to him by telephone. Clearly, that telephone number had to have been obtained from somewhere. She had the information that the accused was involved in the (horse) racing industry. Apparently, no attempt was made by the Constable to speak to anyone who was at the racecourse on 6 June 2003. Further, and perhaps more regrettably, she made no attempt to speak to any racing steward or other official in an attempt to obtain further or better particulars as to the identity of the accused. In this regard there is no evidence of the Constable attempting to obtain any physical description of his assailant from the complainant. In his application for a Permanent Stay of Proceedings the accused maintains that he has resided permanently at 108 MacIntyre Street, Inverell since well before June 2003.

[14] In her evidence before me on 18 December 2006 the constable maintained that as at 20 September 2003 she was of the view that she had insufficient indication of the identity of Mr. Fenton's alleged assailant. In light of the fact that she had a telephone number, that she had spoken to a Brian Rogers, that she had the information that he was involved in racing, and that he had apparently been at the local race course on 6 June 2003 the suggestion that the Constable had insufficient material to identify Mr. Rogers must be firmly rejected. Even if she I initially did not have that information, it would have been very simple indeed for her to make the necessary inquiries to determine that identification. So far as any claim of lack of identification is concerned, the stated address on the Court Attendance Notice of the accused was 108 MacIntyre Street. The accused maintains in his application that he resided at this address at all relevant times. The lack of proper inquiries on this aspect is one of the many unsatisfactory aspects of this case.

[15] It seems that the Constable had very little contact with Mr. Fenton after the first few months following the initial complaint. Given the serious nature of the allegation, this is another unsatisfactory aspect of the matter. It seems to me that it is not appropriate, given the nature of the allegation, to simply allow the matter to fall into "limbo" and inaction. If there was some aspect of the matter about which the officer was uncertain, then it was up to her to seek advice from appropriate quarters. There has been for many years a very competent and experienced police prosecutor (SSgt B. Willett) on the Moree/Inverell Magistrate's Circuit. There are designated detectives stationed at Inverell. Constable Jubb would have had access to other police officers superior to her in rank and experience. It seems that she did not have recourse to any of these resources.

[16] Further, it emerged in the course of the evidence before me on 18 December 2006 that it was on the application of Constable Jubb that the matter was suspended on the C.O.P.S. (Computerised Operational Policing System) System. Constable Jubb did not initially volunteer this information when she first gave evidence about the matter being suspended. The fact that the suspension was at her instigation only emerged in answer to a specific question. In the circumstances of the matter I was very much left with the impression that the officer took the step of suspending the matter rather than expending the effort required to bring the matter to some sort of conclusion.

[17] Constable Jubb has been on leave since May 2006. The matter only came before the Court when another officer was apparently allocated to a number of outstanding matters of which this matter is one.

Jurisdiction to grant a Permanent Stay of Proceedings

[18] The matter proceeded before me with both parties agreeing that I had the jurisdiction to consider the grant of a permanent stay of proceedings in this matter.

[19] Going first of all of the issue of whether the Local Court has jurisdiction to grant such relief, Mason CJ in Jago -v- District Court of NSW (1989) 168 CLR 23 at 27 said: "In Connelly -v- DPP ( [ 1964] AC 1254 at 1347) stated that in his view 'a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English Criminal Law".

[20] Dawson J. (with whom the other members of the Court either agreed or agreed with additional comments) in Grassby -v- The Queen (1989) 168 CLR 1 at 10 said: "In Connelly -v- DPP views were expressed, notably by Lord Devlin and Lord Pearce that every court has a power to decline to hear proceedings on the ground that they are oppressive and an abuse of process of the court…. Whether such comments were correct in relation to inferior courts exercising ordinary judicial functions has been doubted, but it is clear that they do not extend to a magistrate hearing committal proceedings".

[21] I note that the proceedings before the Court are not committal proceedings, and in fact, the charge is one, which although is indictable, is one which is almost invariably determined to finality in the Local Court. In 1988 the Parliament amended the then applicable legislation, such amendment having the effect that charges of Assault Occasioning Actual Bodily Harm were only heard on Indictment on the election of the prosecution.

[22] In the matter presently under consideration, the prosecutor on 18 December 2006 indicated that there was no intention of the prosecution to seek to elect to have this matter heard on indictment. The prosecution did not take issue with the proposition that I had the jurisdiction to hear and determine the application by the accused to permanently stay proceedings in this matter.

[23] Lord Devlin in Connelly -v- DPP [1964] 2 All ER 401 (I do not have access to the authorised Reports in Moree) said at p. 442 (par H): "Are the Courts to rely on the executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment from those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the executive for seeing that the process of law is not abused."

[24] The statements by his Lordship at p. 443 Pars. C-D and p.446 at pars. C-D are also apposite.

[25] Lord Pearce in the same decision at p. 449 par G said: "The Court has, I think, a power to apply, in the exercise of its judicial discretion, the broader principles to cases that do not fit the actual pleas and a duty to stop a prosecution which on the facts offends against those principles and creates abuse and injustice".

[26] Returning to the aspect of jurisdiction of the Local Court to grant a permanent stay of proceedings, Dawson J. said in Grassby at p. 16: "On the other hand, a magistrate's court is an inferior court of record with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise".

[27] His Honour went on to say at P. 17: "It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication for statutory provisions conferring particular jurisdiction".

[28] Accordingly, in the absence of clear authority to the effect that this court does not have jurisdiction to grant a permanent stay in matters which while indictable, are tried on indictment only on the election of prosecution, and in circumstances where the prosecution concede they are not seeking to so elect, I conclude given what was said by Dawson J. in Grassby that the Local Court does indeed have power to grant a permanent stay. It seems to me that given the changes to the then relevant legislation in 1988 it was the clear intention of the Parliament that the Local Court, would ordinarily deal with charges of Assault Occasioning Actual Bodily Harm to finality.

What will justify an order of a Permanent Stay of Proceedings?

[29] I turn now to whether that very extreme remedy should be granted. Mason CJ (Brennan J as he then was and Dawson J agreeing) in dismissing the Special Leave Application by the Attorney General in Watson -v- The Attorney General made the clear observation that a permanent stay of proceedings is a remedy which is unusual, and should be granted in only the most extreme of cases.

[30] Mason CJ in Jago -v- District Court of NSW (1989) 168 CLR 23 at pp. 33-4 said: "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the communities right to expect that persons charged with criminal offences are brought to trial. (References deleted) At the same time the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent say is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case…. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which does 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".

[31] On the issue of "fairness", Deane J. in Jago at p. 57 said: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly to be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve and undesirably, but unavoidably, large content of essentially intuitive judgment."

Accused needs to show prejudice to justify a permanent stay of proceedings

[32] Hunt J. (as he then was) (Carruthers & Grove JJ agreeing) said in Basha (1989) 39 A Crim R. 337 at 338: "There can be no doubt that the District Court has power to ensure the fair trial of charges to be heard before it and, where necessary to do so to prevent an abuse of proceed, to stay proceedings on the indictment: Barton (1980) 147 CLR 75 at 95-6. The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of such a trial is in the relevant sense unacceptable to the extent that the trial would be unfair: Barron -v- A-G (1987) 10 NSWLR 215 at 219.

[33] Although the Court of Criminal Appeal was dealing with a matter to be tried on indictment, the essential principle must be the same so far as any application in the Local Court.

Prejudice alleged by the accused in the present case

[34] The accused maintains he suffers both actual and ostensible prejudice in the matter presently under consideration. Going initially the suggestion of actual prejudice the accused maintains that a witness he would have called is now dead. That witness, would have, so the accused maintains, provided the accused with an alibi. There is, apparently, no dispute that that witness is now dead. At paragraph 8(a) of the application before the Court the accused maintains: "One of the witnesses I would have called namely Mr. Les Fox died in November 2003. Mr. Fox regularly attended the Inverell Race Course as (his) son was and is currently a racehorse trainer. Mr. Fox would have been able to give evidence concerning my non attendance at the Race Court during 2003".

[35] The absence of evidence or witnesses will not automatically justify an order permanently staying the proceedings. Grove J. in Stringer (2000) 116 A Crim R 198 at 200-1 (pars 11-12) said: "It is well established that a permanent stay should not be granted simply because witnesses or evidentiary material have become unavailable or lost: Adler unrep. NSWCCA 11.6.92; Goldberg unrep NSWCCA 23.2.93; McCarthy unrep. NSWCCA 12.8.94; Tolmie unrep. NSWCCA 7.12.94; Hatfield [1999] NSWCCA 340.

Every case must nevertheless be determined in the context of its own facts and there is undoubted jurisdiction to stay proceedings to prevent unfair trial. Although the jurisdiction involves the exercise of discretion, the circumstances will usually have to be extreme for such relief to be given: Jago -v- District Court of NSW (1989) 168 CLR 23; Glennon (1992) 173 CLR 592, Tolmie ".

[36] However, apart from the absence of the alibi witness, the accused maintains that he is severely prejudiced in a number of other respects. According to the application before the Court, the accused maintains that he was absent from Inverell on 6 June 2003. The person who at that time employed the accused is no longer in business and the relevant business records are lost. Further according to the application, inquiries made of the Inverell Jockey Club reveal that records of any horses stabled at the Inverell Race Course in June 2003 are no longer available. The prosecution took no apparent issue with these assertions made by the accused.

[37] The accused also relies on the submission that because of the very real and significant delay there is the aspect of failing human memory. The accused argues that he is significantly prejudiced to the point where any hearing of this matter would be unfair to him, and accordingly, the proceedings should be permanently stayed.

[38] The prosecution argued essentially, that the allegation is of a serious assault, and it is a matter that properly ought to be determined by the Court.

[39] If this matter were to proceed to hearing any Magistrate would be required to give themselves very strong warnings and directions in accordance with the decisions in R -v- Murray (1987) 11 NSWLR 11 and Longman -v- The Queen (1989) 168 CLR 79. There would also need to be, it seems to me, a very strong warning in accordance with s. 165 (1)(c) of the Evidence Act, 1995, so far as the time is concerned. Those warnings, and being aware of the loss of the alibi witness and other records are the steps the Court could take in order to give the accused a fair hearing. The question then is whether those are sufficient to ensure that the accused has a fair hearing, or whether the prejudice suffered is so great that those measures are inadequate to ensure a fair hearing?

[40] The allegation of the assault is a serious one. The community has an expectation that those matters will be prosecuted in the criminal courts. However, the community also has an expectation that such matters will be properly investigated in a timely fashion. For the reasons I have already expressed, I am of the opinion that the investigation in this matter was thoroughly unsatisfactory. The very considerable delay has not been satisfactorily explained. That delay has caused prejudice to the accused, through the loss of records, and the general fallibility of human memory after time.

[41] It is notorious that human memory is more likely to be unreliable after the passing of time. Indeed, that is one of the very reasons why the Longman type warnings are so important in cases where there has been a delay. Apart from the ostensible prejudice caused by the delay the accused has lost access to records and most importantly, a potential "alibi" type witness.

[42] I am acutely aware of the various pronouncements of the superior Courts in cases where the remedy of a permanent stay of proceedings was sought. I take into account what was said by Grove J. in Stringer, and by the Court of Criminal Appeal in the cases referred to by his Honour. Although the allegation in the matter presently under consideration is a serious one, it is nevertheless, a matter, which is to be decided to finality in the Local Court rather than on Indictment.

[43] In all the circumstances, including the highly unsatisfactory delay that was never satisfactorily explained, and the actual prejudice to the accused by the loss of witnesses and records, I am of the opinion that this is one of those very rare matters where the Court is justified in granting the very extreme remedy that is sought by the accused in this matter

[44] The proceedings in respect of the Court Attendance Notice H18376652 alleging that the accused on 6 June 2003 did assault John Fenton thereby occasioning actual bodily harm to him are permanently stayed.

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