R v Griffin [2006] ACTSC 77

3. The Crown alleges that when they arrived, they saw the applicant get out of his car and approach the complainant's Jaguar carrying a large knife. He allegedly struck the front passenger window with the handle on a number of occasions. The complainant got out of his vehicle to remonstrate with the applicant but backed away as the applicant came towards him thrusting the knife at him. The applicant then ran back, leapt onto the bonnet of the Jaguar and broke the windshield with his foot. The complainant dragged him down and a scuffle ensued. The complainant was eventually able to wrest the knife from the applicant and held it at his throat for a short time before getting up and beginning to walk back to his car. He then heard the applicant call out to him and as, he turned round in response, he was stabbed in the chest. Despite this he was able to make it back to the Jaguar. He threw the knife he had taken from the applicant in his direction before getting into the car. The applicant then stabbed one of the tyres causing it to deflate. The complainant drove away for some distance on the flat tyre before stopping to call an ambulance.

4. The applicant does not dispute that he was involved in an altercation with the complainant or that he stabbed him, but claims that he did so in self-defence. His case is that he had been working as a chef and, like others in that occupation, normally carried his own knives with him when travelling to and from work rather than leaving them behind in the kitchen. In a subsequent police interview, he alleged that the complainant had rung him at work earlier that day and threatened to kill him and members of his family. Consequently, when he saw the complainant's vehicle pull in behind his, he feared for his safety and attempted to frighten him away by brandishing a carving knife. The complainant had a steak knife and initially lunged towards him but, on realising that he had a larger knife, began to back away. The applicant then leapt onto the bonnet of the Jaguar to break the windscreen in the hope that it would make it more difficult for the complainant to follow him when he left. The complainant discarded his knife and got onto the bonnet with him. They struggled and fell between the two cars. He claims that the complainant subsequently gained the upper hand, took the large knife from him and held it against his cheek. He was pinned down with the complainant on top of him and was frightened, fearing that "the complainant could have done anything". The complainant then got up and began kicking him in the side. He began searching his pockets for anything he could use in his defence. He found a small paring knife and "punched him in the chest with it". He said that he had not intended to injure him; he "just wanted it stopped". The complainant broke off the assault upon him and he subsequently stabbed one of the tyres to prevent the complainant from chasing him. He then fled in his own vehicle.

5. It is common ground that the complainant was later treated for a stab wound in the position he described. It is also common ground that the applicant was subsequently admitted to hospital with a stab wound in his abdomen and a cut to his elbow. The evidence given by the complainant at the committal proceedings did not include any coherent account of how these injuries might have been inflicted. He conceded that there had been a steak knife in his Jaguar, which might have fallen onto the ground when he got out, but denied having had it in his hand or having stabbed the applicant with it. Indeed, he said that he had no knowledge of how the applicant had been wounded. A steak knife was subsequently found on the ground in the general area within which the two vehicles had been parked.

6. Shortly after the incident the applicant instructed his solicitor, Mr Collaery, that he had acted in self-defence and Mr Collaery promptly rang the police to ensure that the steak knife would be retained for testing. However, subsequent forensic examination revealed no blood on the blade, and neither fingerprints nor DNA were detected anywhere on the knife. Mr Collaery then approached the Office of the Director of Public Prosecutions (`the DPP') to obtain the T-shirt worn by the applicant when he had been stabbed, so that it could be submitted for scientific examination with a view to demonstrating that it had been cut by a serrated edged knife. The DPP, quite properly, contacted the Australian Federal Police Forensic Laboratory to have it made available for that purpose and on 9 November 2005 responded to him, indicating that the relevant case officer had said that two T-shirts had been retained, both belonging to the applicant, and that it was unclear which one was required. However, on 25 January 2006, after further inquiries, the DPP again wrote to Mr Collaery, acknowledging the earlier advice, but revealing that the informant had now said, "that Mr Griffin's clothing was taken by the police from the hospital and that neither the police nor the forensic laboratory had any record of being in possession of Mr Griffin's clothing". In short, they had lost it.

7. During the hearing, Mr Collaery tendered a report from a forensic scientist who had examined photographs of both the steak knife and the carving knife and confirmed that if the T-shirt were available for inspection it would be possible to assess the damage with respect to its recency and, if the knives were also available, assess which one may have caused the damage, bearing in mind their difference in both blade size and cutting edge. The applicant maintains that the loss of the T-shirt has prevented him from relying upon this evidence and hence irretrievably prejudiced his prospects of a fair trial. It is in this context that he seeks a permanent stay of proceedings.

8. There can be no doubt that a court has jurisdiction to stay proceedings where a continued prosecution of charges would result in an unfair trial (Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 95-96) and, as the learned Crown prosecutor has pointed out, the principles to be applied on an application of this nature are well settled. In Jago v The District Court of New South Wales and Ors [1989] HCA 46; (1989) 168 CLR 23 at 33, Mason CJ explained that the touch stone in every case was fairness, but that it was necessary to balance the interests of the accused person against the community's right to expect that people charged with criminal offences are brought to trial. Hence the power should be exercised only in an extreme case. As his Honour explained at 39, for a permanent stay to be justified -

. . . there must a fundamental defect which goes to the root of the trial "of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton (1980) 147 CLR 47 per Wilson J at 111 see also Glennon (1992) 173 CLR 593 at 605.

1. It is true, of course, that many trials occur in the absence of potentially important evidence, and axiomatic that a permanent stay of proceedings is not justified by mere advertence to some uncertainty as to what, if anything, might have been revealed by the scientific examination of lost evidence. The dominant questions at common law were whether the applicant had established that the loss of the evidence in question had given rise to a fundamental defect going to the root of the trial, the unfair consequences of which could not be relieved by other measures and, if so, whether the interests of the community in having the charges brought to trial were outweighed by the need to ensure that any such trial would be fair.

10. In this Territory, the right to a fair trial is now recognised by s 21 of the Human Rights Act 2004 and s 30 of that Act provides that in working out the meaning of a "Territory law", an interpretation that is consistent with human rights is as far as possible to be preferred. However, the dictionary in the Act provides that the term "Territory law" means an Act or statutory instrument and, at least in the absence of any argument to the contrary, I can see no reason to assume that the common law principles affirmed in Jago are no longer applicable in this Territory. These principles have been applied in a number of cases.

In Holmden v Bitar (1987) 47 SASR 509 the South Australian Supreme Court granted a stay to prevent further prosecution of a charge under the Quarantine Act 1908 (Cth) of knowingly bringing five cans of meat paté into Australia. Section 86D of that Act provided that the charge "shall, in the absence of evidence to the contrary, be deemed to be proved". The cans of paté had been destroyed by quarantine officers and, in the absence of evidence from the European manufacturer, it was difficult to see how the defendant could have discharged this onus of proof.

12. This case was, of course, quite different from that with which I am presently concerned because of the reverse onus of proof but it is of interest because of the cautionary remarks of Cox J at 517:

Of course, there may not have been an exculpatory answer available, even from the manufacturer. I suspect that there was not. However, it would be wrong to take that for granted. It would also be wrong to treat the appellant's objection as a mere piece of forensic opportunism, an unmeritorious attempt by a guilty defendant to avoid the consequences of her breach of the law. It may, indeed, have been both of those things, but that makes it all the more necessary not to lose sight of the important underlying principle.

13. In R v Davis [1995] FCA 1321; (1995) 57 FCR 512 a Full Court of the Federal Court of Australia upheld a decision of this court to grant a stay preventing further prosecution of various charges of sexual assault allegedly committed by a medical practitioner many years earlier. Most of the complainants had apparently presented with a gynaecological problem, and it was alleged that Dr Davis had carried out an internal vaginal examination and that he had done so either in the absence of any legitimate medical purpose or in an inappropriate manner. He sought the stay on the grounds of prejudice due to the destruction of patient cards that would have recorded whether or not an internal medical examinations had been carried out and, if so, the clinical signs and reasons for doing so. The Full Court was satisfied that this case met even the demanding tests referred to in Jago and other authorities cited. Their Honours said that there was nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay and consequential loss of the medical records, and added the comment that, "to apply a telling phrase used by Toohey J in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 61 . . . to force Dr Davis to stand trial on these charges under these circumstances `would offend the court's sense of justice'".

14. In the present case, the applicant is not faced with the additional problem of delay and the inevitable impact on memory that confronted Dr Davis. Nor is he unable to determine why he might have acted as he did. However, such factors have not always proved indispensable.

15. In the subsequent case of Duncombe-Wall v Police [1998] SASC 6754 (2 July 1998) the appellant was charged with threatening to cause harm without lawful excuse. The police had been called to the appellant's home to deal with a domestic dispute. There was an issue as to whether they had been called by the complainant's son or the appellant, the complainant claiming that she had asked her son to call them because she feared for her safety and the appellant claiming that he had called them because of the son's aggression towards him. A subpoena was issued for the production of the tape recording of the 000 call but the tape had been re-used and the recording erased. The tape was the only evidence capable of corroborating the appellant's version of events. Lander J held that it was essential to a fair trial of the matter that the appellant be given the opportunity to support his version of events and proceeded to order a permanent stay of the proceedings. It was not to the point that the prosecution's case was overwhelmingly strong.

16. A similar approach was taken in R v Delly [2003] ACTSC 113 (19 December 2003) by Higgins CJ who stayed proceedings on an indictment for theft of a motor vehicle on the ground that a fair trial would be impossible due to the death of a crucial witness.

17. In the present case, Mr Collaery pointed out that, whilst there was unlikely to be any dispute that his client had been stabbed during the course of the scuffle, any jury empanelled to try the matter would not be bound to accept his evidence as to the complainant's use of a knife. Since no fingerprints, blood or DNA had been found on the steak knife, the jury might assume that it could not have been used and speculate that he had been accidentally wounded by his own knife during the scuffle. In that event, his inability to adduce evidence as to the type of knife that caused damage to his T-shirt in the area adjacent to the wound could prove decisive. No direction could compensate for the absence of that evidence. Hence, the trial would be unfair.

18. The Crown submitted that the contention that the complainant had stabbed the applicant with the steak knife could be readily dismissed. The complainant had denied that he had used it and subsequent examinations had failed to reveal fingerprints, DNA or blood. The version of events that the applicant had given to the police on 12 August 2004 had not included any reference to him being stabbed and he had said that the complainant had discarded his knife before getting onto the bonnet of the Jaguar.

19. I did not find this approach wholly convincing. The incident was obviously very violent and both the immediacy of the conflict and the emotions it generated might well have led to confusion and oversight. Much of the complainant's evidence is obviously disputed and the mere fact that the applicant did not tell the police that he had been stabbed obviously provides no sensible reason for ignoring undisputed evidence of a stab wound in his abdomen. The evidence adduced by the Crown on this application did not reveal exactly where the steak knife was found or how long it may have lain on the ground before being seized by police. Indeed, the Crown submitted that the evidence did not even establish that the knife found by the police had belonged to the complainant. In any event, the evidentiary weight that could be accorded to an apparent absence of fingerprints, blood or DNA upon examination, apparently in November 2004 and March 2005, would obviously be dependant upon the degree of confidence that one could have in assumptions that genetic material was not lost, whether during the scuffle, whilst it remained on the ground, or subsequently when seized, transported and stored by the police. Since the applicant's T-shirt apparently lasted less than a week in police custody before disappearing altogether, even the latter assumptions might require some measure of faith. Furthermore, as Megarry J pointed out in John v Rees (1970) Ch 345 at 402, the 'path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained...'. It would be dangerous to assume that, because there is otherwise an apparently strong case for the Crown on this issue, the expert evidence denied the accused by reason of the loss of the T-shirt could not have assisted him.

20. More importantly, as Lander J said in Duncombe- Wall, it is not to the point that the Crown has a strong case; the accused person is still entitled to a fair trial. There is nothing in either the common law or s 21 of the Human Rights Act to suggest that the right to a fair trial can be dispensed with, either generally or in relation to particular issues, merely because it seems likely that the Crown would have succeeded anyway. It is true that that appellate courts do not overturn convictions merely because the conduct of the trial involved some unfairness to the accused but only when it may be concluded that "there was a `miscarriage of justice' ... such that the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' ... or 'a real chance of acquittal' ..." per Mason CJ and McHugh JJ in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 310-311. However, that does not warrant a conclusion that, viewed prospectively, the rights of the accused are limited to a fair trial of issues upon which he or she can demonstrate reasonable prospects of success. If that proposition were adopted, then some trials could be dispensed with altogether. Whilst the concept of fairness should not be interpreted as requiring a complete absence of potential prejudice, the general principle is that the accused is entitled to a trial in which all significant issues can be dealt with fairly.

21. On the other hand, as previously mentioned, it is still necessary to consider whether the interests of the community in having the charges brought to trial outweigh the need to ensure that the trial would be fair in the relevant sense and, in considering that issue, it may be sometimes be appropriate to take into account the strength of the available evidence on issues in question. However, much will obviously depend upon the particular circumstances of the case.

22. In the present case, the evidence relied upon by the Crown to suggest that the steak knife had not been used to cause the wound to the applicant's abdomen may also be seen as akin to a two edged sword. Whilst it tends to cast doubt on the truth of the applicant's assertion, it also demonstrates that his last hope of supporting it may have lain in an examination of the missing T-shirt.

23. Somewhat similar considerations arise in relation to the Crown's submission that the steak knife could not have been used because the applicant told the police that the complainant had discarded the knife prior to the struggle. This is a valid consideration but it is not conclusive. It is undeniable that the applicant was stabbed by something though, in the absence of any expert appraisal of the damage to the missing T-shirt, there is no evidence as to what. He may have been mistaken about the complainant discarding the knife. Even an admission against interest may be mistaken, alternatively, the complainant may have been it taken up again later during the struggle, though there is no evidence to that effect. It is also conceivable that the applicant was stabbed accidentally by one of his own knives during the struggle, but there is no evidence of that either.

24. In the alternative, the Crown argued that, whatever the mechanism by which he had been stabbed, he would be entitled to raise self-defence. Any issues as to the causation of his injuries were for the jury to determine, but there was no reason to suppose that his inability to have the T-shirt tested would prevent a fair trial. Its loss may have been unfortunate but, even if he had suffered some prejudice as a consequence, and that cannot be known, he has not established that it amounts to a defect going to the root of the trial, the unfairness of which could not be relieved by an appropriate direction.

25. I do not accept this submission. A somewhat similar argument would have been available to the Crown in Duncombe-Wall. Despite the loss of the tape recording, it would have been open to the defendant to give evidence that he had made the relevant call and it would have been open to the jury to determine this factual issue. However, the relevant question was not whether the defendant would have been denied the chance to raise the issue but whether he would have been denied a fair trial on the issue. Lander J clearly concluded that he would. Having regard to the stringency of the tests propounded by Jago and other authorities, it may be thought that the decisions in cases such as Duncombe-Wall and Delly should be seen as approaching the high water mark for applications of this nature but, in my opinion, they are nonetheless instructive.

26. The present case is not without difficulty. Since the T-shirt has been lost it is, of course, impossible to know whether or not the proposed scientific examination would have provided evidence of damage caused by the serrated edge of the steak knife allegedly wielded by the complainant. However, if it had, that evidence would have been extremely important. If it had been accepted that the applicant may have been wounded by the steak knife, then the wound could not have been dismissed as a mere incident of the struggle, having little overall impact on this issue. On the contrary, it would have suggested that the applicant had faced an armed man posing a real and imminent threat to his safety, rather than an unarmed man merely attempting to remonstrate with him or restrain him. Even then, an acquittal on the ground of self-defence might not have been assured because he had apparently already left his vehicle and had been advancing upon the complainant with his own large knife. However, this issue would have to have been considered in the context of the evidence of earlier death threats from the complainant and the applicant's contention that he had approached him in this manner in the hope of frightening him away and deterring him from carrying out any of these threats. Furthermore, it appears to be a common ground that he had either lost the big knife, or he had it taken from him during the course of the struggle. If, as he claims, he had sought to use the paring knife to repel any further assault whilst substantially helpless and perhaps already wounded, then self-defence could not be excluded.

27. Apparently persuasive evidence suggesting that the complainant had stabbed the applicant with a knife he had taken with him from the Jaguar could also have undermined the complainant's credibility. The jury, or judge if a trial by judge alone, could have concluded that, if his evidence on that issue could not be accepted, then other aspects of his evidence could not be safely relied upon. It is true that his evidence at the committal was corroborated by evidence given by Ms Lutz, but she had been giving evidence of what she had seen of an altercation between a former and a current partner whilst remaining in the Jaguar. More importantly, the objective credibility of her evidence would also have been undermined if it had been shown that the complainant had stabbed the applicant with the steak knife.

28. In one sense at least, the plight of the applicant is worse than that faced by the defendant in Duncombe-Wall because he cannot give direct evidence of being stabbed with the steak knife, though there are offsetting considerations such as the undeniable evidence of the stab wound in his abdomen and the other matters previously mentioned.

29. It is unfortunate that the T-shirt was lost whilst in police custody. The Australian Federal Police normally employ rigorous procedures for ensuring the security of items seized from suspects. In other circumstances, the loss of potentially important evidence, especially after a sustained and unexplained failure to implement them, could give rise to suspicion that it had been lost deliberately. Perhaps fortunately, there has not been the faintest suggestion to that effect in this case. However, it should not be assumed that courts will place no reliance upon the fact that the evidence in question has been lost, even inadvertently, by those who arrested and charged the accused person or by their fellow officers.

30. The suggestion that the matter could be adequately addressed by means of a judicial direction to the jury is, with respect, somewhat fanciful. In R v Slattery [2002] NSWCCA 367 (4 September 2002), the NSW Court of Criminal Appeal was confronted by a case in which a rifle, allegedly discharged with intent to cause grievous bodily harm, had been destroyed after examination by police experts. Smart AJ, with whom Hodgson JA and Hidden J agreed, suggested that a direction should have been given along the following lines:

The Crown has relied on the expert ballistics evidence of Sgts Constable and Roach. They have expressed the view that in January 1992 the Model 20 Stirling shortened rifle was not functioning as a semi-automatic weapon but as a handgun, that it required manual reloading upon a shot being fired or discharged and a trigger pressure of at least 4 pounds 2 ounces before it would fire and was therefore unlikely to discharge accidentally. Those views were based on their examination and testing of the weapon.

The weapon was destroyed some time after August 1995. Accordingly, the appellant's expert witness, a person of considerable experience, has not had the opportunity to examine and test the weapon nor have that witness, the appellant and the appellant's counsel had the opportunity to demonstrate before you how that weapon may have discharged and reloaded and functioned as a semi-automatic weapon.

These are severe disadvantages. It is important in the interests of a fair trial that an accused have the opportunity to examine and test the weapon. In the present case by reason of the destruction of the weapon the accused is unable to adequately test and meet the evidence of the Crown's ballistics experts. If the accused's expert had had the opportunity to do so, he may have been able to show you that the weapon was or may have been capable of functioning as a semi-automatic weapon and that it could discharge accidentally quite readily. We do not know. The opportunity to cross-examine the Crown's ballistics experts is no substitute for independent examination and testing of the weapon by an experienced ballistics expert. Further, such an examination and testing may have provided the appellant's counsel material with which to cross-examine the Crown's ballistics experts. This was of particular value in the present case as the initial ballistics report made no mention of the rifle not operating as a semi-automatic one. Such cross-examination could cast doubt on the critical parts of the evidence of Sgts Constable and Roach. We do not know if this would have happened. With the destruction of the weapon you are dependent on what the Crown ballistics experts say as to the weapon and that is untested in any meaningful way. Accordingly it would be dangerous to convict the accused relying on the ballistics evidence of Sgts Constable and Roach unless you, in scrutinising that evidence with great care considering the circumstances and paying heed to the warning including that that ballistics evidence cannot be properly tested on behalf of the accused and the disadvantages earlier mentioned, were satisfied of the truth and accuracy of the ballistics evidence of those officers.

31. In that case, there was, of course, expert evidence as to the relevant facts and the only difficulty arose due to the absence of any opportunity for the accused to have the rifle independently tested in the hope of obtaining expert evidence to the contrary. Their Honours clearly thought that this difficulty could be at least substantially overcome by the somewhat convoluted direction postulated. In the present case the T-shirt was not examined by anyone. Hence, even a direction of this kind could not be given. Nor is it clear how any other direction would materially redress the balance without inviting the jury to speculate about what might have been ascertained by the intended examination.

32. In some cases it might be possible to employ other means of ensuring due fairness. For example, in R v Slattery the trial judge could have excluded the ballistics evidence tendered by the Crown, if satisfied that a direction, even along the lines subsequently formulated by the Court of Criminal Appeal, may have been inadequate. In the present case, however, no such alternative is available. It seems that a stay must be granted if the applicant is not to be tried without the opportunity of relying upon the potentially decisive evidence that may have been available had the T-shirt not been lost by police.

33. I am most reluctant to make an order that will prevent a person from being brought to trial on charges alleging serious acts of violence. Regrettably, however, I have been obliged to conclude that this loss has given rise to a fundamental defect going to the root of the trial, the unfair consequences of which cannot be relieved by other measures. In R v Davis (supra) the Full Court referred to the observation of Mason CJ, Dawson J, Toohey J and McHugh J in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 that a court should refrain from granting a stay unless satisfied that an unfair trial would otherwise ensue, but explained that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. Their Honours added, at 521, that, "It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender". In my opinion these remarks are apposite to the present case. Any trial of the applicant would be conducted in circumstances of irreparable unfairness.

34. In my opinion, the stringent tests postulated in Jago have been satisfied. A permanent stay of proceedings will be granted.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: ACT Director of Public Prosecutions