Regina v J W S Rose

Forensic Investigation 15 Determining the cause of death was difficult. The body was in an advanced state of decomposition and infested by maggots. There was a bruise to the neck, consistent with the inhibition of the vagal nerve. 16 Forensic investigation was undertaken in two areas. First, swabs were taken from the vagina. They revealed the presence of semen. Semen was also observed on the outside of the deceased's underwear, not far from the vagina. The swabs and the underwear were tested by the Analytical Laboratories at Lidcombe. The blood group revealed by each test was that of the deceased. It was not the blood grouping of the accused. These tests, however, did not exclude the accused as the source of the semen. Vaginal secretions, when mixed with semen, will often produce the blood grouping of the woman. 17 Secondly, dust samples were taken from the rims of the deceased's vehicle. Geologically, the dust was the same as that given off by the dirt road near the bridge where the deceased's body was found. 18 The Coroner held an Inquest in June 1983. He recommended that the accused be charged with murder. The Attorney General, however, declined to file a bill. The accused, shortly thereafter, left Armidale to live in Victoria, where he has remained.

The Revival of the Prosecution 19 Some eighteen years after these events, the police received information which caused them to reopen the investigation. The case for the Crown will include both evidence assembled in 1982 and material uncovered since. In respect of the latter, two matters are important. First, the Crown case, as presented to the Coroner, did not include the two witnesses who claim to have heard the accused make threats against the deceased. One of those witnesses said that she spoke to the officer in charge of the investigation in 1982. She provided the same information which now appears in her statement. There is no record, amongst the papers in respect to the original investigation, of her having done so. The officer in charge of the investigation denies that anything was said to him. 20 Secondly, the Crown arranged for the dust samples, which were examined in 1982, to be further examined. Mr Stroud, geologist, produced a report of his examination. The report, one gathers, goes further than the original investigation by Dr Burns. Mr Stroud examined the geology of the Armidale region with a view to identifying those areas which may have been a possible source of the dust found on the vehicle rims. There are only a few such areas. The only location where there is both the geology revealed by the dust samples, and a dirt road, is Weirs Road leading to the bridge where the deceased's body was found. More than that, the geology changes markedly at the location of the bridge. The inference is invited that the vehicle went to the bridge, and no further. Weirs Road, according to Mr Stroud, was the last dirt road over which the deceased's vehicle travelled. Were the deceased murdered at the accused's flat, transport from the flat to the bridge would involve travel along a bitumen road, and then Weirs Road. It is the Crown case that the accused made that journey, and dumped the body at the bridge. The dirt on the deceased's clothing is consistent with dirt found on the interior of the vehicle. 21 The Crown case against the accused is, of course, a circumstantial case. It was described by the Crown as "a case of substance". Essentially, the Crown relies upon the following circumstances: · First, the troubled nature of the accused's relationship with the deceased, and his refusal to accept her decision to leave. · Secondly, the accused's jealousy at the deceased's relationship with other men, and his threats against her life. · Thirdly, the accused's capacity to carry out his threats, he being an expert in karate, and the opportunity to do so on the afternoon of 30 April 1982. · Fourthly, the geological evidence suggesting that the accused used the deceased's vehicle to transport her body to the bridge on Weirs Road. · Fifthly, the presence of the deceased's glasses in the accused's flat, observed the day after she disappeared. On the Crown case the deceased was extremely short sighted. She habitually wore glasses. · Finally, the account of the "young bloke" calling for the deceased at 6.30 pm is, according to the Crown, implausible. No-one fitting the description he provided was known to anyone who had an association with the deceased.

The Basis of the Application 22 It was acknowledged, on behalf of the accused, that an order staying a prosecution will only be made in extreme or exceptional circumstances. Adopting the framework of relevant indicia identified by Deane J in Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 60-61, Counsel for the accused pointed to three matters which, in his submission, made the case exceptional. 23 First, although the accused had no right to a speedy trial, he had "the right to be trial without unreasonable delay" (Jago (supra) at 59). Here the delay was extraordinary, almost 19 years. The accused had not contributed to the delay. 24 Secondly, quite apart from the general prejudice which may be assumed to arise from delay (cf Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 117 A Crim R 222), the delay in this case had occasioned specific prejudice to the accused. The vaginal swabs and the underpants of the deceased had been discarded or lost. It is no longer possible for the accused to have them tested by modern day DNA analysis. Had they been available, and had semen remained, further testing may have demonstrated that the semen was that of another man. The Crown's task, in that event, in excluding all hypotheses consistent with innocence, would have been significantly more difficult, if not impossible. 25 Thirdly, whilst the public has an interest in the prosecution of serious crime, that interest is diluted in circumstances where the Crown has a "very weak" case. 26 Elaborating upon these matters, it was said that the hypothesis arising from the geological evidence was not as persuasive as it may at first appear. The experts are not able to say when the dust accumulated upon the rims of each wheel. It is therefore possible that it may have been deposited before the vehicle was dropped off by the deceased. The deceased may herself have driven on Weirs Road. Indeed, that section of the road is not far from her home, and is close to New England University, which she attended. 27 The Crown responded by drawing attention to a map attached to the geologist's report. There was no plausible reason why the deceased would have used that section of Weirs Road which led to the bridge. It was a dirt road, when sealed roads were available providing access to locations she was known to visit. It was significantly longer and less direct as a means to access to such places. I am inclined to accept, prima facie, that it would be highly unusual, on the information provided, for the deceased to have chosen to travel along the dirt road. 28 It is, according to Counsel for the accused, hardly surprising that the dirt upon the deceased's clothing was consistent with that in her vehicle. It was her vehicle. She travelled in it. You would expect whatever dirt was in the vehicle would transfer to her clothing. 29 So far as the glasses of the deceased are concerned, a number of witnesses at the committal proceedings said that the deceased had two pairs of glasses, which were described. Indeed, some witnesses said that the deceased sometimes chose not to wear glasses. 30 Although there is force in these arguments, I am inclined to accept that the Crown case is "one of substance". 31 The real complaint by the accused concerns the destruction or loss of evidence. Professor Boettcher was called on behalf of the accused on the application. He provided a report which included the following opinion: "However, Goetz attempted grouping tests on 'the seminal stained items', presumably both the swabs and the panties. To perform such tests he would have made aqueous extracts of the semen stains. Presumably he would have cut out the stains from the panties. Consequently, in making the aqueous extracts, Goetz would have washed many of the sperm heads from the items. Further, he might well have then discarded both the swabs and the material cut from the panties that had the stains on it. Nevertheless, if the swabs of the material cut from the panties were now available, I would expect that there could well be a sufficient number of sperm heads caught in the fabric of the swabs or the material to enable a DNA profile to be determined today. I consider that it would be worthwhile trying to re-test the vaginal swabs and the material from the panties." 32 Professor Boettcher said that good forensic practice, even in 1982, required the retention of exhibits. He had accumulated a cupboard of such specimens, many of which dated from the early 1980s. 33 Mr Goetz, the head of the Analytical Laboratories at Lidcombe, was called by the Crown. It was, in fact, Mr Goetz who, in 1982, had undertaken the tests upon the swabs and underwear. As was mentioned by Professor Boettcher, the tests involved a washing process. That process may have removed all traces of sperm. Indeed, Mr Goetz thought it unlikely that, even had the exhibit been retained, they would have been suitable for testing by modern DNA techniques. However, he acknowledged, the possibility that sperm may have remained. 34 To carry out the tests on the underwear, Mr Goetz had cut out four segments of cloth, each the size of a ten cent piece. Each piece was then subjected to a washing process. It was possible, although in Mr Goetz's opinion unlikely, that sufficient sperm heads would have remained to enable DNA testing. Had the remnants of the underwear (from which the cloth had been cut) been retained, it is possible that fabric with semen would still have been available, in which case it would yield a DNA profile of the source of the semen. 35 The accused submitted that he had lost the opportunity of demonstrating positively that it was not his sperm. That opportunity, in the context of this case, is the more significant, according to the accused, because of the following evidence given by Mr Goetz at the Coroner's Inquest in June 1983: (T 51/52) "Q. And you see the item 11, the panties, where did you detect the presence of semen on them? A. Semen present on the panties was on the side section, on the outside of the panties. Q. On the outside? A. Yes. Q. Would that be unusual in your view? A. Yes, it is. Mainly because if a person is active after having intercourse you would expect drainage from the vaginal area onto the inside of the crutch of the panties, not onto the outside of the panties. Q. And would that feature be consistent with the deceased remaining prone after intercourse? A. It's very difficult to say, it would depend probably on the position of the panties in relation to the vagina. If the area was turned inside out at that location, it is very difficult to say exactly that. Q. Well, if the assumption be put that after intercourse the deceased was fully clothed and walked would you expect semen on the inside of the panties? A. Yes, I would." 36 Mr Goetz adhered to that view in cross examination before me. 37 Here, as mentioned, the evidence was that the deceased arrived at the flat mid afternoon. She was active. Had the sperm found in her vagina, and on her underwear, been deposited before her arrival, you would have expected semen on the inside of the underwear. That suggested, according to the accused, that she did not move after intercourse and before she was murdered. For the accused to be guilty, therefore, on this argument, it would have to be his semen. Had he been able to demonstrate conclusively that it was not his semen, and that it was the semen of someone else, the Crown would have failed on its circumstantial case. 38 The Crown responded to these arguments by asserting that it was not an essential circumstance on the Crown case, that the accused had intercourse with the deceased before she was murdered (Shepherd v The Queen (1990) 170 CLR 573), although it was possible that he had. 39 However, the semen may be that of another man, and yet other circumstances, proved by the Crown, may exclude any reasonable explanation other than the guilt of the accused. There were a number of possible explanations for the absence of semen on the inside of the underwear. There was evidence that the deceased intended to have a shower at the flat of the accused. It was possible that she may have been murdered whilst undressed, and that she was later dressed by the accused with underwear she had not been wearing, although stained with semen. There were other possibilities besides. 40 Although the matter was not fully argued, I am inclined, at this stage, to agree that it is not an essential circumstance in the Crown case that the accused had intercourse with the deceased, and that the semen, which was present, was his semen.

Principles Relating to a Stay 41 The principles in respect of an application for a permanent stay have been authoritatively stated by the High Court (Barton v The Queen (1980) 147 CLR 75; Jago v The District Court of New South Wales (supra)). An order will only be made in extreme or exceptional circumstances. The touchstone is fairness. In judging fairness, the Court must balance the community's expectation that persons charged with serious crimes will be brought to trial, and the further expectation that such trials, when they occur, will be fair. 42 When is a trial likely to be unfair? Delay, as such, is unquestionably prejudicial (Longman v The Queen (supra); Crampton v The Queen (supra)). It is prejudicial both to the Crown and, relevantly, to the accused. Deane J in Jago (supra) said this: (at 60) "The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case." 43 His Honour added: (at 60) "It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process." 44 The issue is whether the defect, said to produce unfairness, is fundamental, such that it goes to the root of the trial, so there is nothing the trial Judge can do to relieve the unfair consequences (Wilson J in Barton v The Queen (supra) at 111 (adopted by Mason CJ in Jago (supra) at 34)). 45 It sometimes happens, especially in the context of delay, that witnesses important to the defence die or are unavailable at the time of the trial, or, as happened in this case, exhibits are lost. Unquestionably that is prejudicial to the accused. That prejudice does not confer an automatic right to a stay, as Gleeson CJ explained in The Queen v McCarthy & Ors (CCA, unreported, 12 August 1994): "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 proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported, CCA, 11 June 1992) and R v Goldberg (unreported, CCA, 23 February 1993)." 46 In R v Adler (unreported, NSWCCA, 11 June 1992), Gleeson CJ (with whom other members of the Court agreed) said this: "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 …" 47 The onus is upon the person seeking a stay (Barron v AG (1987) 10 NSWLR 215 at 219, 233). It was described by Hodgson J in R v Littler [2001] NSWCCA 173 (at para 6), as "a heavy onus" because of the nature of the order which is sought.

Conclusion 48 I accept that, by reason of the extraordinary delay, the accused has been prejudiced. I further accept that the loss of exhibits, and especially the underwear, robs the accused of the possibility of proving that the semen was that of another man. However, I do not accept that the loss of that opportunity is fundamental, going to the root of the trial, and that it cannot be alleviated by appropriate direction. I have reached this view for a number of reasons. 49 First, the items which were lost were the subject of analysis in 1982. That analysis, so far as it went, assisted the accused. It was not his blood type. It was the blood type of the deceased. Although that finding is not conclusive, it ameliorates, to some degree, the difficulties which have arisen. 50 Secondly, even had the exhibits been retained, there is no certainty that they would have yielded a sufficient sample of semen to enable DNA analysis. That is a possibility, but no more than a possibility. Had the sample been capable of being tested, it may have assisted the Crown case, rather than that of the accused. 51 Thirdly, it will often happen, in an imperfect world, that issues will be left unresolved which, had they been resolved, may or may not have assisted the accused. In The Queen v King [2000] NSWCCA 507, the accused was charged with robbery and aggravated sexual assault. The victim was heavily pregnant at the time. She was attacked at night and blindfolded. When she ultimately raised the alarm, she complained of the robbery, but not the sexual assault. The assault was a matter of acute embarrassment to her. She eventually revealed the assault to her husband and the police the following day. By that stage, the procedures followed routinely by the police in the case of sexual assault were of no use. The means of identifying the DNA of her assailant was lost. 52 The accused denied that he was this woman's assailant. There was, nonetheless, a strong circumstantial case against him. He was convicted. He ultimately complained to the Court of Criminal Appeal that a direction should have been given by the trial Judge concerning the disadvantage to him through the victim's failure to raise the issue of the sexual assault. It deprived him of the ability to demonstrate the presence of another. The appeal (Fitzgerald JA, Whealy and Howie JJ) was dismissed. 53 There could, in that case, be no suggestion that, having been deprived (in that case by the complainant) of the opportunity of demonstrating the presence of another, the accused could not receive a fair trial. The issue on the appeal was whether, to overcome the disadvantage to the accused, through the loss of opportunity to prove the presence of another man, a direction should have been given. 54 There will be cases where that which is lost is so fundamental that it goes to the root of the trial. In R v Reeves (122 ACTR 1), the accused was a partner in an engineering firm. The Crown alleged that he and a consultant, Mr Royale, created false and misleading accounts. Mr Royale committed suicide. The company, in winding up its operations, destroyed a "massive number of records", including the working papers of Mr Royale, his files and correspondence. An application was made for a stay. Gallop J said this: (at 23) "Even if a prima facie inference was available to the Crown in the sense that it could establish an hypothesis consistent with guilt, the destruction of the documents, after the institution of the criminal proceedings against him, has created a situation whereby he is deprived of properly advancing a contesting hypothesis consistent with innocence." 55 His Honour added: (at 23) "Having considered all the circumstances, I have concluded that because of the destruction of documents it is not possible for the applicant to receive a fair trial. That destruction creates a fundamental defect which goes to the root of the trial and I do not believe that there is anything that a trial judge could do in the conduct of the trial that could relieve against its unfair consequences: Barton v R (1980) 32 ALR 449; 147 CLR 73 per Wilson J at 111." 56 In contrast, in R v Irena Hatfield [1999] NSWCCA 340, the accused was charged with the murder of her husband in April 1985. In August 1997 the accused sought a stay. A number of exhibits had been lost which she claimed were important in demonstrating her innocence. The following had been lost since the investigation began: (para 5) "(i) The Brno brand .22 calibre firearm and silencer. (ii) Clothing worn by the accused at the time. (iii) The clothing worn by the deceased. (iv) A woollen blanket which was partly covering the deceased when he was found. (v) A glass from the room in which the deceased was found and on which were some bloodstains." 57 Further, the Crown case substantially depended upon a Mr Busby. Mr Busby had undergone counselling. The counselling notes had been lost, or destroyed, thereby depriving the accused of a potent means of challenge to his evidence. Yet, notwithstanding these matters, Grove J (first instance) and the Court of Criminal Appeal (Sully, Hulme and Hidden JJ) refused a stay. 58 In all the circumstances, I am not satisfied that I should stay the proceedings. I therefore make the following orders.

1. The Notice of Motion of 5 September 2001 seeking a permanent stay is dismissed.

3. This judgment should not be published (save as to the orders made) until the conclusion of the trial, or further order. **********

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