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… on the 18th day of July 2004 … attempted to murder David Maly AND … intentionally inflicted grievous bodily harm on David Maly AND … recklessly inflicted grievous bodily harm on David Maly.

2. Those charges were alternatives arising out of an incident on 18 July 2004. The factual circumstances and the alternative contentions concerning them were set forth by his Honour. They are not alleged to have been erroneously set out.

3. The incident that gave rise to these charges occurred on the evening of Sunday, 18 July 2004. A number of telephone calls had earlier been exchanged between the applicant [Mr Griffin, the accused] and his former girlfriend, Ms Lutz, who claimed that he owed her money and wanted him to return some items apparently given to him during the course of their relationship. Arrangements were apparently made for them to be picked up at his home. She and the complainant [Mr Maly], who was her new partner, left their flat at about 9.30 pm to travel to the applicant’s home in the complainant’s Jaguar. During the course of the journey they saw the applicant in his car and, after contacting him by mobile telephone, arranged to meet him at the Lanyon Market Place.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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. 3. It was, and remains on this appeal, common ground that a court may and, indeed, must stay criminal proceedings if it appears there is (per Wilson J, Barton v R (1980) 147 CLR 75, 111: … a fundamental defect which goes 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. 4. It should be noted that s 21 Human Rights Act 2004 (ACT) (HR Act) now is the source, under Territory law, of the right to a fair trial. The difference may be one of emphasis rather than of substance. It does, however, mean that there is now a positive right to a fair trial rather than the right not to be tried unfairly as the common law provides. It may be that would make a difference in some cases, though in this case it seems to us to lead to the same result. 5. There is a duty cast on the trial judge to relieve the unfairness referred to by Wilson J (supra). 6. That duty is reinforced by the provisions of the HR Act (for example, s 21). 7. However, whilst emphasising that duty, his Honour added this caveat (at 111): I find it more difficult to conceive of an abuse of process arising in cases based, not on a criticism of the charge itself, but on procedures that either have been or are proposed to be followed. These matters, of course, can have an important influence on the fairness of the trial, but they are matters in respect of which an accused can be protected by appropriate decisions of the trial judge bearing on the conduct of the trial.

9. The question before the primary judge in the present matter was whether the loss of the T-shirt in this case required, in the circumstances, the remedy of a permanent stay.

10. His Honour recognized that the mere fact that potentially important evidence is lost or unavailable will not, by itself, warrant that response.

11. It was clear that the issue at trial would be whether the Crown had negatived the clearly available hypothesis that the accused had acted in self-defence.

12. It was also apparent that the accused had received a serious stab wound in the course of his altercation with the complainant. If that wound appeared to have been effected with the steak knife that had come from the complainant’s motor vehicle and was found outside of it at the scene, that would strengthen that hypothesis. It would be inconsistent with an alternative hypothesis that the accused had accidentally stabbed himself with his own knife in the course of the struggle with the complainant in which he had brought the knife to the struggle to assault the complainant with it, though that, of itself, would not necessarily disprove self-defence.

13. The steak knife itself had been tested but no blood or DNA had been detected on it. The T-shirt may have revealed whether the steak knife, with a serrated blade, or a chef’s knife, with a smooth edged blade, had passed through it. The fact that the steak knife was clear, on later examination, of genetic material, could not be conclusive of its non-involvement in causing the wound to the accused’s abdomen.

14. It was clear, and Mr Refshauge did not dispute it, that there were three knives involved in the scuffle leading to the stabbings of the accused and the complainant. The complainant had asserted that the steak knife fell out of his car onto the ground and had played no part in the events that later occurred. There was a statement made by the accused which supported the view that it was not used in the scuffle, though it had been brandished but it could not be said with certainty that the accused’s impression that the steak knife was discarded was accurate.

15. Mr Refshauge also conceded that the prosecution could not contend that the wound to the accused’s abdomen had been caused by the complainant throwing the accused’s chef’s knife at him after he had obtained possession of it following their physical altercation.

16. It was also apparent that the complainant had been stabbed, not with the chef’s knife, or, indeed, the steak knife, but with a small paring knife the accused had had in his pocket. He said he drew it to protect himself from the complainant who had obtained possession of the chef’s knife.

17. Indeed, Mr Refshauge further conceded that it was not a strong case for the prosecution on negating self-defence, even if the prosecution evidence was substantially accepted.

18. However, his contention, even allowing that, was that a fair trial was not prevented by the loss of the T-shirt.

19. In R v Slattery [2002] NSWCCA 367 (4 September 2002), a lost weapon was relied on to demonstrate a similar prejudice to the accused in that case. It was not available for independent testing on behalf of the accused. The Court of Criminal Appeal (Hodgson JA, Hidden J and Smart AJ) agreed that the loss of the weapon in question did have a prejudicial effect but considered that a direction could eliminate that unfair prejudice.

20. The suggested direction so to do was (at [93]): … 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 evidence of those officers.

21. In this case, his Honour concluded that (at [31]): 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.

22. Thus, his Honour concluded, at [33], that the loss of the T-shirt: … 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.

23. The fundamental issue in contention between the accused and the Crown is the correctness of that conclusion. It is not suggested that his Honour mis-stated the appropriate test or has misapprehended the facts which are in contention in the case. It was his judgment that the fairness of the trial was not only compromised, as is not disputed, but irretrievably so, which is disputed.

24. Having considered the submissions of the parties, both oral and written, we are, however, persuaded, notwithstanding the respondent’s well researched and reasoned submissions, that the absence of the T-shirt does not prejudice irretrievably the respondent because the jury can be instructed that: (i) They cannot draw any inference from the absence of the T-shirt other than that a forensic examination of the T-shirt may have provided evidence supporting the proposition that the complainant stabbed the accused with either the steak knife or the chef’s knife. (ii) They cannot draw any conclusion that the wound to the accused’s chest was caused by the complainant throwing the accused’s chef’s knife at him after the conclusion of the scuffle between them. (iii) It would be unsafe for them to convict the accused in the absence of evidence that the stab wound to the accused’s chest was not caused by the complainant stabbing the accused either before the accused obtained his chef’s knife or before he drew the paring knife from his pocket to repel a perceived attack by the complainant.

25. In those circumstances, we would uphold Mr Refshauge’s submission that the prosecution should not have been stayed. Indeed, the prejudice to the accused, albeit real, seems somewhat less than in Slattery (supra) where the evidence had been forensically tested and the results known. A jury might reasonably have concluded, after carefully considering that evidence, that the results were acceptable. That option is not available to the prosecution in the present case.

26. We also consider that, whilst expressed as a “permanent” stay of proceedings, the order so made is interlocutory.

27. The indictment remains on foot. It is not discharged by verdict or nolle prosequi. Had the T-shirt been discovered, it would have been open to the Director to have moved to discharge the stay order.

28. Thus we would, for the reasons referred to above, grant leave to appeal, uphold the appeal and set aside the stay order made. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 5 April 2007

Counsel for the Appellant: Mr R Refshauge SC with Mr C Todd

Solicitor for the Appellant: Director of Public Prosecutions for the ACT

Counsel for the Respondent: Mr B Collaery

Solicitor for the Respondent: Collaery Lawyers

Date of hearing: 16 February 2007

Date of judgment: 5 April 2007

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