"The power to stay is said to be discretionary. In this context, the word 'discretionary' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not………….."
69 However, the ultimate question is one of determining whether it is in the public interest generally that the trial of the accused proceed or that the Crown be restrained from exercising its right to invoke the jurisdiction of this Court by the presentation of an indictment. The exercise of the Court's power to restrain the Crown is an exceptional one and should only be exercised where the accused has proved to the Court that there is no other procedure open to cure the unfairness or prejudice said to arise from the delay in the commencement of proceedings.
70 The accused accepts that delay of itself will not generally be sufficient to warrant the court staying a prosecution even thought the length of delay is relevant to the issue of oppression. I have already noted that the accused does not assert impropriety on the part of the police or the Director. There is no suggestion that the initial investigation was incompetent, although the fresh evidence is criticised on the basis that it would have been available at the time of the initial investigation if the right questions had been asked of witnesses or had it been thought that further expert evidence was required. The submission was made that the Crown was little better off in terms of available evidence than it was at the time the decision was made to proceed only on the killing of Christopher.
The fresh evidence
71 The probative value of the fresh evidence relied upon by the Crown to justify the present proceeding is a relevant consideration in determining whether it would be so oppressive to the accused to put him to trial for the murder of his parents that the Court should not permit it to take place. So too is the fact, if it be the fact, that the evidence could reasonably have been available, when proceedings were originally commenced against the accused, had the matter been fully investigated. But in my opinion there is no basis for determining the issues raised by the application for a stay of the indictment simply on the basis that the evidence does not come up to the standard required under the provisions of the Crimes Appeal and Review Act.
72 In any event I am not persuaded that the fresh evidence is of little weight or importance so that it could not justify the decision of the Director now to commence proceedings against the accused. As I have made clear the Crown case is a circumstantial one, and, therefore, it is erroneous to consider each piece of fresh evidence alone and determine its probative value or significance without regard to the whole of the evidence now available to the prosecution. For example, the evidence as to the wetness of the accused's hair may by itself seem trivial and of little evidentiary value. The accused submitted that it went only to a "subsidiary issue" and therefore was not substantial. I am not certain that in a circumstantial case any particular piece of evidence can be relegated to a "subsidiary issue" or be considered as being not substantial simply because it does not of itself prove the guilt of the accused.
73 The evidence as to the state of the accused's hair is only one of a number of matters that the Crown relies upon to prove that the accused's version in the recorded interview could not possibly be true. If used as one of a number of circumstances to prove the Crown's case, it does not have to be proved beyond reasonable doubt, and, therefore, the reliability of the evidence is not as crucial as it might have been had the onus of proof been higher.
74 Similarly the evidence of the tape recording may not satisfy the criterion for fresh evidence under the Crimes Appeal and Review Act but I do not accept the submission that it has no probative value. On its face it goes generally to the relationship between the accused, his parents and his brother and is a piece of circumstantial evidence. Because it was made some years before the killings, it might not have high probative value but it does not mean that it should be discarded from consideration when determining whether the prosecutor was unjustified in commencing the present proceedings. I should make it clear that I am not deciding whether the evidence should be admitted at the trial, I am merely considering the fresh evidence as a whole in considering whether the commencement of the proceedings should be considered to be unjustified.
75 The fact that fresh evidence now relied upon by the Crown might have been obtained at the first investigation is relevant to the issue of oppression but again it is not, in my opinion, decisive, particularly in the absence of any suggestion that the original investigation was incompetent or that there is anything improper in the way that the police or the Director has proceeded to this point.
Lost evidence
76 The following is evidence that has been lost probably as a result of the Crown accepting the plea and the early determination of the first coronial inquest:
Primary
· The knife said to have been used in the killings.
· The bloodstained shave coat that the deceased, Christopher Gilham, was wearing at the time of his death.
· The clothing allegedly worn by Jeffrey Gilham at the time of the killings.
· The carpet samples from the living room of the house that were tested for accelerant.
· Swatches of textile removed from Christopher Gilham's shave coat for forensic testing.
· Swabs that were forwarded to the Analytical Laboratories for analysis.
Secondary
· A washing basket (found in the room that Christopher Gilham was located in) which contained:
A knife;
A mug (receptacle);
Syringe;
· Panadol packet and Panadol tablets;
· Chemical residue found in the mug by police, which proved to be Panadol.
77 Further there was a lack of testing done on some items, mainly because at the time DNA testing was in its infancy. So the knife found near the body of the accused's brother and said to be the murder weapon was never tested for DNA or blood. However, it appeared to be clean of blood and had no fingerprints. The shower cubicle and bathroom drains and basins were not tested for blood or DNA. No carpet samples were tested for blood.
78 Although some testing was carried out on Christopher Gilham's shave coat, the blood group found was consistent with his and his mother's blood but not with his father's blood. The Crown would contend that the failure to further analyse the shave coat for DNA and the inability to do so now, is of little relevance. It is apparent from the photograph that the visible blood appears to be in the position proximate to the stab wounds to his body. It was submitted by the Crown that, if further testing located blood from the mother, this would not necessarily be inconsistent with a transfer of blood from the knife used to kill the mother. It was submitted that the jury could not speculate about the absence of the shave coat or the lack of further testing but that the absence of evidence could not advance the Crown case.
79 It is clear that a trial can be rendered unfair and hence the prosecution an abuse of process where evidence has been lost by reason of delay or otherwise. A number of cases were referred to on behalf of the accused in various jurisdictions where stays of proceedings have been granted on this basis. There was no case placed before me of a stay having been granted in this State on the basis of lost evidence. There are decisions that have held that the loss of a potential witness does not necessarily justify a stay: R v Adler (NSWCCA, unreported, 11 June 1992) the loss of defence witness corroborating the accused, R v Goldburg (NSWCCA, unreported, 23 February 1993) where an alibi witness was unavailable; R v VPH (NSWCCA, unreported, 4 March 1994) where the accused's wife had died and thus could not give evidence of domestic arrangements at the relevant time; R v Tolmie (NSWCCA, unreported, 7 December 1994) where there was the loss of two prosecution witnesses.
80 A stay of an indictment is an extraordinary step that is to be exercised sparingly and with the utmost caution. It is the last resort to be taken by a court to protect an individual. This was made clear in Jago v District Court, see at 31 per Mason CJ and at 76 per Gaudron J. Whether a stay is the only available remedy depends upon a consideration of the significance of the lost evidence in the particular case and whether any direction can be given to a jury or any other power could be exercised by the trial judge to overcome such prejudice: R v RWO [2002] NSWCCA 133 at [68]. The accused has submitted that no direction could be given that would cure the unfairness derived from the loss of the evidence but I am not satisfied that this is so.
81 The courts in general are now familiar with lengthy delays and the resultant loss of evidence in child sexual assault cases. The loss of relevant evidence can in some cases be shown to be very significant. For example, the delay can mean that the accused is no longer able to ascertain whether he or she might have had available an alibi. Witnesses who might have been able to give relevant evidence might no longer have any or sufficient memory of events or might have died. Because of the delay there will have been no examination of the child and no opportunity to secure forensic evidence that might have been relevant to support or deny the child's version of events. Prejudice has generally been presumed by delay even though the accused cannot show what the prejudice might have been.
82 But unfairness that might have been occasioned by delay including the loss of evidence has never to my knowledge resulted in a stay of proceedings of a child sexual case as an abuse of process. The courts have acted on the basis that a direction, known generally as a Longman direction, can sufficiently ensure a fair trial for the accused by informing the jury of the effects of delay and the consequence of it upon the accused's ability to defend the charge. The court warns the jury of the need for caution to be applied when assessing the Crown case and before they convict the accused. In some cases it might be necessary to warn the jury that it may be dangerous to convict the accused by reason of the delay and its prejudicial effect.
83 I have some difficulty in appreciating why it would be that such a direction can be sufficient to address the loss of evidence in a sexual assault case but not in a case for some other offence and particularly where the accused is able with more certainty to indicate the exact evidence that has been lost and the specific unfairness that has been occasioned as a result. I can see nothing about the nature of a child sexual assault prosecution that intrinsically would suggest that the loss of evidence in such a case has less impact than in a prosecution of any other serious offence. Quite the contrary. In such a case it is almost inevitably the word of the complainant against that of the accused and evidence going to the credibility or reliability of the complainant would be crucial.
84 As I have already noted, the intended prosecution of the accused is a circumstantial case and the Crown is not relying upon the reliability of any particular witness to prove the charges against the accused beyond reasonable doubt. Rather the prosecution would be attempting to prove that the account of the accused given at the time of the killings, or very shortly thereafter, could not possibly be true. To this extent the loss of evidence seems to me to have less impact than it might have. True it is that the defence might have used an exhibit now missing or tests carried out on those exhibits to bolster an inference that the accused's account is true. But the Crown could not rely upon the absence of those exhibits or the lack of testing to support an inference that the accused account was false. This is where I believe that directions or warnings to a jury might be more effective than would be the case where, for example, a complainant in a sexual assault prosecution is an apparently credible and compelling witness. In such a case the jury might more easily be able to dismiss the significance of the lack of evidence in the face of a witness that they feel should be believed.
85 The accused complains that the Crown will rely upon evidence of experts who might, because of their expertise, be considered favourably by the jury and yet the accused will not be able to cross-examine them effectively because the exhibits upon which they will express opinions have been lost. The accused is not now in a position to have the exhibits tested by his own experts. But I am not satisfied that this is a matter that cannot be addressed by suitable directions emphasising the lost opportunity of the accused to test the evidence. In any event it appears to me that what the accused has lost is a chance that he might have been able to present evidence that would weigh against the Crown case that his version of the events was false. He has lost an avenue of inquiry, or avenues of inquiry, that may have had a beneficial impact upon his defence: R v Helmling (NCWCCA, unreported, 11 November 1993). That is a matter that appears to me to be appropriately dealt with by directions from the trial judge.
86 In R v Slattery [2002] NSWCCA 367 the rifle used in the commission of a shooting offence had been destroyed before defence experts could examine it. The Court of Criminal Appeal set aside the verdict because of a failure of the trial judge to give an adequate warning to the jury, drawing their attention to the possible prejudice to the accused by the inability of the defence to examine the weapon. But there is nothing in the judgment to suggest that, had such a warning been given, the trial would necessarily have been unfair such that the verdict would have been quashed.
87 What this decision highlights is the benefit of being able to see with clarity the prejudice to the accused having regard to the evidence actually given at the trial and how, if possible, that might be addressed in light of submissions made to the jury. Otherwise the court in deciding whether there would be such unfairness as to render a trial an abuse of process is left to speculate about the evidence to be led at the trial and to make decisions based upon assertions that might not prove accurate when the issues in the trial are clearly established. This emphasises in my mind the exceptional step of granting a stay on the basis of lost evidence.
88 Crispin J in the Supreme Court of the ACT was somewhat dismissive of Slattery in R v Griffin [2006] ACTSC 77 and, with respect, was in my view too willing to assume that a direction or warning to a jury could not address the prejudice suffered by the accused from the loss of physical evidence before examination by a defence expert. But in any event that was a factual decision based upon facts different to those in the present case. Further it was a decision made by a single judge on an issue upon which minds might reasonably differ. In that case the police lost the evidence while the prosecution was on foot and while it was in their custody. That was a matter that was seen to be of relevance to the decision even though it was not asserted that it had been lost deliberately. In that case, unlike this, no expert had examined the missing object.
89 None of the individual cases relied upon by the applicant establish any principle that might guide me in determining the question whether the proposed trial of the accused would be so unfair by reason of the loss of the exhibits that a stay of the prosecution is warranted. They each depend to a very large extent upon their own facts. For example in Holmden v Bitar (1987) 47 SASR 509 the defendant had the onus of proof in a quarantine offence where the items imported had been destroyed. In Duncombe -Wall v Police [1998] SASC 6754 there was a major issue as to credibility of the prosecution witnesses and the missing evidence might have been crucial to resolve that issue. In R v Davis (1995) 57 FCR 512 the evidence lost was contemporaneous notes made by the accused of medical examinations of the complainants in a sexual assault case without which it was impossible for him to remember the particular consultation about which the complaint was made.
90 However, what the cases emphasise is that it is for the accused to prove that the trial would be so unfair as to require a stay and that such an onus is not easily satisfied given the exceptional nature of the remedy.
91 It has been made clear that a fair trial does not mean a trial that is as fair as it could possibly be. The question is whether the trial would be rendered unfair when judged by "acceptable standards of justice" Barton v The Queen (1980) 147 CLR 75 at 97. In Jago v The District Court (1989) 168 CLR 23 at 33 Mason CJ said: