(iii) the unfairness must arise from a fundamental defect which goes to the root of the trial; Jago v District Court NSW (1989) 168 CLR 23, Barron v Attorney General (1987) 10 NSWLR 215; the remedy is discretionary and will be ordered only in exceptional circumstances.
24 No complaint is made about the applicability of these principles to the matter in hand. Further, at page 19 of his Honour's reasons after the passages in his Judgment which are the subject of complaint as to the basis for his determination on counts 1 & 2, his Honour stated his conclusion in these terms:
"In the result I am not persuaded that the circumstances of this case are so unusual or exceptional as to justify a permanent stay in respect of counts 1 or 3 so as to remove the case from the principles established in the authorities relied upon by the Crown."
25 The reference to the authorities relied on by the Crown appears to be a reference to decisions of this court in Adler (unreported, CCA, 11th June 1992); Goldburg (23rd February 1993); McCarthy & Ors. (12th August 1994); Tolmie (7th December 1994); Helmling (11th November 1993); and of the English High Court in Doyle v Leroux QBD noted (1981) Crim LR 631.
26 In the applicant's written submissions challenging his Honour's determination on counts 1 & 3 it was contended that the critical question is whether the evidence would have assisted the defence. This submission (in relation to his Honour's determination in relation to all the counts) was developed more fully in the course of oral argument. It was put that the applicant had lost evidence which established facts capable of giving rise to a doubt as to his guilt. That loss could not be cured by direction and, accordingly, called for the grant of a permanent stay.
27 In McCarthy Gleeson CJ (as he then was) observed:
"Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that the proceedings need to be stayed. In this connection I refer to what was said in R v Adler and R v Goldburg ."
28 In Adler Gleeson CJ observed:
"The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial and it has not been shown to produce that result in this case."
29 Mr Odgers noted that this application had proceeded on the basis of the acceptance by his Honour of the facts as asserted by the applicant. Accordingly, there was no element of speculation about the material that was lost to the applicant upon his trial. This was to be contrasted, in Mr Odgers' submission, from the position of the applicants in cases such as Adler, Goldburg, McCarthy, Helmling and Tolmie.
30 I do not consider that the decision in Adler can be distinguished in the way in which Mr Odgers contends. True it is that Gleeson CJ refers in the passage I have cited above to "a witness who is potentially able to corroborate an accused". However, in the preceding paragraph there is reference to the material which it had been anticipated the missing witness in that case might have given in evidence. The assumption was made that his evidence would have supported that of the applicant. In Goldburg Mahoney JA, in a Judgment with which Gleeson CJ and Abadee J agreed, considered that the non-availability of an alibi witness did not, in the circumstances of that case, justify the grant of a permanent stay. There was no issue as to the fact that Mrs Goldburg if available would have given evidence confirmatory of her son's alibi. Mahoney JA said this:
"The beginning and end of the application lies in this, that whenever the event occurred, an important witness in support of the alibi defence will not be available to give evidence at the trial. Mrs Goldburg because of her medical condition will not be called as a witness and therefore that evidence will not be available to the accused. This will, I shall assume, diminish his chances of succeeding upon the alibi defence. But the question is whether, accepting that to be true for the purposes of this argument, that would or could warrant the learned judge granting a stay of proceedings" (p.4).
31 His Honour went on to state that the mere fact that a witness has died or become unavailable does not as such warrant the granting of a stay. He doubted whether it would be open to a judge in circumstances such as that in Goldburg to exercise his or her discretion to grant a stay merely on this basis. He was not however prepared to exclude the possibility that there may be cases in which the absence of a witness would provide the basis for a stay (p.5).
32 I note that in the case of Tolmie where the evidence of the lost witnesses was wholly a matter of speculation Hunt CJ at CL, referring to the decisions in Adler, Goldburg and McCarthy, observed, "In those cases, it was known what evidence could be given by the missing witness, and that the accused suffered some prejudice as a result of its loss" (p.5).
33 It was the applicant's submission that in a case where it is established that the accused has lost the benefit of evidence capable of creating a reasonable doubt in the mind of the jury it must follow that he or she has been deprived of a fair trial. Directions by the trial judge would not be able to remedy the loss. I do not accept that this is a correct statement of principle. It overlooks the fact that the discretion to stay an indictment involves a weighing up of a number of considerations one of which is the interest of the community in seeing that persons accused of serious offences face trial; Jago per Mason CJ at p.33, Brennan J at p.50, Deane J p.72 & Gaudron J p.76; The Queen v Glennon (1992) 173 CLR 592 per Brennan J at 617. It overlooks the powers and discretions available to the trial judge in dealing with missing witnesses or documents; McCarthy per Gleeson CJ at pp.11-12; Jago per Brennan J p.47 & 49.
34 Circumstances will ordinarily be extreme to justify the grant of a permanent stay; Jago at pages 31, 60 and 76; Glennon at pages 605 and 615-6. Nothing put on this application suggests that the present case falls into that necessarily small class of case where the extreme measure of a permanent stay is necessary in order to relieve against unfairness.
35 I do not consider that a sufficient basis has been shown to doubt the correctness of the conclusion reached by Judge Davidson such as to warrant the grant of leave to appeal.
36 I would propose that leave to appeal be refused.