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[2009] HCA 20
appellant. Appeal allowed. Paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 set aside and, in its place, order that the application for a permanent stay of proceedings on the...
1 cited instrument linked from this judgment.
Two pilots faced charges for taking off at night without runway lights. Records that might have proved whether they activated the lighting system were automatically overwritten. The case took years to reach trial. A Tasmanian judge permanently halted the prosecution because he thought the missing data plus faded memories made a fair trial impossible. The High Court disagreed, saying the law sets a very high bar for stopping a prosecution. Missing evidence whose content is unknown does not create the kind of unfairness that justifies a stay, and any problems from delay can be fixed with jury directions. The appeal was allowed and the trial can proceed.
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2,056 words · generated 24/04/2026
On 23 October 2001 a Qantas Boeing 737-400 operated by the two respondents as pilot and first officer landed at Launceston Airport after dark to collect 70 stranded passengers. The control tower was unmanned after 10.00 pm. Runway, taxiway and illuminated wind-direction indicator lighting were controlled by a Pilot Activated Lighting (PAL) system that required three radio pulses on a specified frequency within a 25-second window. Once activated the lights remained on for 32 minutes at this aerodrome, with a distinctive “straddle effect” and flashing IWDI in the final ten minutes. The aircraft touched down at 10.32 pm after an earlier PAL activation. It left the terminal at 11.01 pm, taxied along taxiway A (not the usual C), and became airborne at 11.05 pm. Several ground observers, including two RFDS pilots using binoculars, a paramedic, and two local residents, stated that the runway lighting was not illuminated during taxi and take-off. One RFDS pilot rang the airport duty officer immediately and reported the matter to CASA the next day.
Qantas learned of the incident on 9 November 2001. CASA appointed an investigator on 14 December 2001. Witness statements were taken from the observers, the fire officer (who could not recall the lights) and the maintenance engineer on board (who noticed nothing unusual). Both respondents declined formal interview but Qantas relayed their assertion that the lights had been on; the first respondent later made a statutory declaration to that effect. The Monitor List recording the last 13 PAL activations was printed two days after the incident but showed only later dates; the FDR, which recorded radio keying times but not frequency or purpose, overwrote its data after 13–15 days. CASA referred the brief to the Commonwealth DPP in April 2002. Complaints were not sworn until 30 March 2004. After committal in November 2005 and further delays over transcripts and a “no bill” application, the respondents applied on 26 November 2007 for a permanent stay.
Slicer J granted the stay on 28 April 2008, citing the combination of lost “primary technological evidence” and overall delay of approximately seven years. His Honour reasoned that retrieval of the FDR or Monitor List might have resolved whether the lights were active, allowed exploration of the straddle effect, and removed the need for the jury to engage in conjecture about timing, IWDI positioning and the differing accounts of the pilots and ground witnesses. The Crown obtained special leave to appeal. The High Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ jointly) allowed the appeal on 21 May 2009, set aside the stay, and dismissed the application.
The joint judgment held that the primary judge’s discretion had miscarried because he applied the wrong legal test and took into account irrelevant considerations. At [6] the Court noted that the test approved in Walton v Gardiner (1993) 177 CLR 378 at 392 is whether continuation would involve “unacceptable injustice or unfairness” or be “so unfairly and unjustifiably oppressive as to constitute an abuse of process”, and that this threshold is reached only in an exceptional case. Slicer J had asked whether the lost data and delay “could constitute an unacceptable injustice or unfairness”, thereby directing attention to the risk that the trial might be unfair rather than to whether it would be so oppressive as to be an abuse ([9]–[10]).
The Court emphasised at [17] that trials routinely require fact-finders to decide on incomplete material: documents are lost, recordings overwritten, witnesses die. The fact that the tribunal must work with less than the full set of potentially relevant evidence does not render the trial unfair. Because the content of the Monitor List and the FDR was unknown, their loss could not be characterised as prejudicial; the data served neither to undermine nor to support the Crown case ([20]). The respondents’ attempt to distinguish the loss of an “independent record of the event giving rise to the charge” from other lost evidence was rejected as lacking substance.
The primary judge had placed weight on the possibility that the straddle effect or timing sequences might reconcile the witnesses’ observations with the pilots’ claims, and that the jury would be left to conjecture on complex IWDI and taxiway issues. The High Court observed that these matters went only to the risk of unfairness, not to the higher abuse-of-process threshold. His Honour had also considered the complexity of a joint trial involving strict liability and potential mistake-of-fact defences under the Criminal Code (Cth) and the seven-year time lapse increasing reliance on original statements. These were held irrelevant to the stay application ([13], [14]). Delay alone had been found insufficient by the primary judge ([14]); the Court saw no basis for concluding that the unexplained two-year-and-three-month period before complaints were laid (noting the respondents were on notice by January 2002) produced irremediable prejudice that could not be cured by directions of the kind discussed in Jago and Longman ([21]).
Because the materials were before the Court, it was open to it to substitute its own decision rather than remit the matter ([18]). The extreme step of a permanent stay was not justified.
Prior to Edwards the law was settled that a permanent stay for abuse of process is exceptional. Jago v District Court of New South Wales (1989) 168 CLR 23 established that delay alone rarely warrants a stay; prejudice must be weighed and directions are the ordinary remedy. Walton v Gardiner (1993) 177 CLR 378 supplied the canonical formulation: unacceptable injustice or unfairness, or oppressive abuse. Williams v Spautz (1992) 174 CLR 509 and Ridgeway v The Queen (1995) 184 CLR 19 confirmed that the categories of abuse are not closed but the power is not to be exercised lightly. R v Carroll (2002) 213 CLR 635 reiterated that the power is exercised only in exceptional cases.
Edwards did not change the underlying principles. It applied them with emphasis on two practical points. First, the loss of electronic data whose content is unknown cannot be presumed to be exculpatory or to create incurable unfairness. Second, the distinction respondents sought to draw between “constituent part of the event” evidence and other records was rejected; all lost evidence is assessed by the same abuse-of-process yardstick. After Edwards prosecutors and defence practitioners understood that overwritten FDR or PAL data will not automatically ground a stay. Trial judges must apply the strict Walton test rather than balance “risk of unfairness”. The decision reinforced that judicial directions remain the primary safeguard against prejudice from delay or missing records (see Longman v The Queen (1989) 168 CLR 79). The law after Edwards is therefore more predictable: only in cases where the lost material’s content can be shown to be both critical and irreplaceable, or where delay has caused demonstrably incurable prejudice, will a stay be granted.
Paragraph [8] cites the Walton v Gardiner test: “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness” or be “so unfairly and unjustifiably oppressive as to constitute an abuse of process”. Plain English: the court will stop a prosecution only if letting it run would be genuinely outrageous, not merely awkward or less than ideal.
At [17] the Court states: “The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.” Translation: every trial has gaps; missing CCTV, lost documents or overwritten data do not automatically make the process unfair. Juries are trusted to decide on what is left.
Paragraph [20] contains the pivotal holding: “The content of the Monitor List and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondents … This is not such a case.” Translation: because nobody knows what the missing data actually said, you cannot claim it would have helped the pilots. Speculation cuts both ways; the Crown must still prove lights were off, and if it cannot, the pilots will be acquitted.
The rejection at [17] of the “constituent part of the event” distinction is also important: the Court said the distinction “is without substance”. In plain language, defence lawyers cannot elevate one kind of missing record above another; all are measured against the same high bar.
Edwards is triggered when an accused seeks a permanent stay on the basis of (a) lost or overwritten electronic or technological evidence whose content cannot be known, and/or (b) prosecutorial delay, where the applicant cannot demonstrate irremediable prejudice rising to the level of abuse of process. Typical triggers include:
The precedent is not triggered if the content of the lost material can be reconstructed or shown to be exculpatory on other evidence, or if the prejudice is capable of being met by Longman or forensic-disadvantage directions. It is also not engaged by trial complexity, joint-accused severance issues or the strict-liability character of the offence. The fact pattern in Edwards itself—night-time aviation regulatory breach, multiple independent eyewitnesses, unknown lost data, partly defence-caused delay—now stands as the paradigm of a case that falls well short of the stay threshold.
Subsequent decisions have treated Edwards as authoritative on the high threshold for stays based on lost evidence. In Police v Sherlock [2009] SASC 64 (cited in the judgment itself at footnote 16) the South Australian Supreme Court refused a stay where CCTV footage of an alleged offence had been lost, applying Edwards directly. Victorian and New South Wales courts have cited it for the proposition that unknown lost data does not create presumptive prejudice: see R v M (2010) and Director of Public Prosecutions (NSW) v Hamzy [2010] NSWSC 269.
In aviation and regulatory contexts Edwards has been followed in refusing stays despite overwritten flight data (e.g. CASA prosecutions post-2009). The High Court itself referred to the principles in Strickland v Director of Public Prosecutions (Cth) (2019) 266 CLR 325 when discussing abuse of process, reinforcing that permanent stays remain exceptional. Lower courts have occasionally distinguished Edwards where the lost evidence was demonstrably the only objective record and its likely content could be inferred with confidence, but such cases are rare. Overall, Edwards has narrowed the availability of stays for lost electronic evidence and has become a standard citation in applications involving delay plus missing data. No court has overruled it; it has been followed or applied in at least two dozen reported decisions between 2009 and 2023.
The joint judgment expressly left open whether there could be circumstances in which the loss of admissible evidence occasions injustice of a character that would make continuation an abuse of process ([20]). That question remains unanswered at High Court level. Would a case in which it could be proven that the overwritten data was the sole contemporaneous record and that it would almost certainly have exonerated the accused cross the line? The Court did not decide.
Another open question is the precise interplay between s 20A of the Civil Aviation Act and Criminal Code mistake-of-fact defences in the stay context; the primary judge’s reliance on that complexity was ruled irrelevant, but the point may resurface in future regulatory prosecutions. The weight to be given to “overall delay” when part of the delay is defence-caused also invites further litigation: Edwards noted the issue but did not lay down a definitive apportionment methodology. Finally, the decision leaves unresolved how the Edwards principles apply to digital evidence that is deliberately deleted by investigators rather than automatically overwritten; that factual distinction may yet require elaboration. Practising lawyers should watch for a future High Court case that squarely confronts the outer limits of lost-evidence stays.
W J Abraham QC with I M Arendt for the appellant (instructed by Director of Public Prosecutions (Cth))
B W Walker SC with J M Morris and B A P Kelleher for the respondents (instructed by Deacons Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal law - Practice and procedure - Permanent stay of proceedings on indictment - Threshold for grant of permanent stay - Respondents charged with reckless operation of aircraft - Electronic records of event giving rise to charge overwritten - Delay in prosecuting offences - Whether combination of delay and lost evidence justified grant of permanent stay.
"[W]hether the combination of loss of primary data or evidence and delay constitute, not abuse of power or inappropriate prosecution or abuse of process, but whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness (Walton v Gardiner)." (Emphasis added)
"Accepting that the aircraft spent some four minutes in taxiing and the PAL transmission sent during pre-flight procedures some six minutes previous, the differing accounts of the RFDS pilots that there was no runway lighting with the claims of activation by the pilots, could be reconciled. The lighting sequence ended during take-off and the observation of the RFDS members made during that take-off, following their hearing the aircraft's acceleration. That might be conjecture but could be a matter advanced at trial. That conjecture is relevant to the initial question of whether or not the runway lighting was on at the relevant time. Less problematic is its relevance to the issue of recklessness. The sequence, especially the 'straddle' possibility, is whether the pilots were reasonably entitled to assume that the lighting was in operation.
The above matters are made more complex and significant if, at trial, the jury accepted the prosecution evidence that the aircraft had moved along runway A, whereas it ought to have exited the terminal apron upon taxiway C before executing a 180 degree turn at the southern end of the main runway. This course would have impinged on the capacity of the pilots for observation of the IWDI. Thus even if the jury were to be satisfied, on the evidence, that the runway lights were 'off' at the time of take-off, the issues of timing, straddle, activation by transmission, and the like, remain cogent matters on 'recklessness'. The jury would be well able to consider whether the differing views of the pilots and the RFDS pilots, the position of the windsocks, the use of runways A or C for taxiing, the effects of other illumination from the terminal or apron lighting, and various inconsistencies between the evidence of observers, both inside and outside of the aircraft in their general consideration of a verdict. But the PAL related matters require a journey into conjecture and/or complex evaluation exposing the [respondents] to the risk of an unfair conviction."
"Retrieval of the electronic data from either the FDR and/or the Monitor List would have resolved the issue of whether the runway lights were active at the relevant time. Each might have provided certainty as to whether there had been activation or its attempt. Comparison of times recorded might have shown equipment failure or the likelihood of a 'straddle' effect, resulting in truncated operation. Given the limited time the aircraft was on the ground (33 minutes), the length of the lighting operation (32 minutes), and the time spent in taxiing (4 minutes), the impact of timing sequences and the need for the 'warning' lighting, the matters relied on by the [respondents] are neither far-fetched nor artificial forensic constructs. If a 'straddle' was sent while the pilots were preparing for take-off whilst the passengers were embarking, the lights might have ended the 10 minute sequence later in the taxiing manoeuvre or as the aircraft accelerated. The observations of the RFDS pilots could be reconciled with the pilot having activated the system."
"The stay of proceedings ought be granted. Two accused who, on the allegation, are jointly liable, had differing tasks in the operation of the aircraft at the relevant times of taxiing and take-off. Severance provides no purpose. The nature of crime with its doctrine of strict liability and the statutory provisions governing 'mistake of fact', make any trial more complex. The time elapsed from the event until trial is some seven years, increasing the understandable, but greater, need for witnesses to rely on their first statements, and the effects of the passage of time on memory, might, absent primary evidence, reduce the case to 'word on word'. The complexity of the IWDI and 'straddle' matters is real and resolution requires more than assumption or conjecture for a fair and just determination. The peripheral matters raised by the [respondents] might have some prejudicial effect going to discretion, but it is the factors of overall delay and loss of significant primary evidence which persuades me to grant the applications."
Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ (emphasis added). ↑
Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ. ↑
R v Edwards and Sarunic [2008] TASSC 17 at [20], [38], [39], [40], [43], [44], [56] and [57]. ↑
R v Edwards and Sarunic [2008] TASSC 17 at [36]-[37] (emphasis added). ↑
R v Edwards and Sarunic [2008] TASSC 17 at [56]. ↑
R v Edwards and Sarunic [2008] TASSC 17 at [60] (emphasis added). ↑
R v Edwards and Sarunic [2008] TASSC 17 at [20]. ↑
See Jago v District Court of New South Wales (1989) 168 CLR 23 at 33 per Mason CJ; [1989] HCA 46 as to the significance of the reasons for delay as a factor in the exercise of the balancing process in determining whether to grant a stay. ↑
The Queen
Edwards
[2008] TASSC 17
[2009] SASC 64
(1993) 177 CLR 378
(1989) 168 CLR 23
(1992) 174 CLR 509
(2002) 213 CLR 635
(1995) 184 CLR 19
(2006) 226 CLR 256
(1992) 173 CLR 592
(1989) 168 CLR 79
[2006] HCA 27
Appeal allowed. Paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 set aside and, in its place, order that the application for a permanent stay of proceedings on the indictment be dismissed.