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...
Key principles
The threshold for a permanent stay of criminal proceedings is that continuation would involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive...
The loss of evidence whose content is unknown does not occasion prejudice to an accused and does not render a trial unfair, because trials routinely require the tribunal of fact...
Delay in prosecution, even when combined with lost evidence, does not justify a permanent stay unless it produces irremediable prejudice that cannot be cured by judicial...
Issues before the court
Whether the combination of prosecutorial delay and the overwriting of electronic records (Monitor List and FDR data) justified the grant of a...
Cited legislation
1 cited instrument linked from this judgment.
Plain English Summary
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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Deep Dive
2,056 words · generated 24/04/2026
What happened
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.
Why the court decided this way
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.
Before and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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:
Overwritten FDR, cockpit voice recorder, PAL logs, CCTV or sensor data in aviation, traffic or regulatory offence cases where the prosecution relies on eyewitnesses.
Delay of several years between incident and charge where the accused was on early notice of the allegation.
Arguments that the jury will be left to “conjecture” about technical matters (straddle timing, sensor positioning, radio frequencies) or that faded memory makes the trial “word against word”.
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.
How later courts have treated it
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.
Still-open questions
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.
Catchwords
The Queen v Edwards
Judgment (36 paragraphs)
[1]
Set aside paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 and, in its place, order that the application for a permanent stay of proceedings on the indictment be dismissed.
[2]
W J Abraham QC with I M Arendt for the appellant (instructed by Director of Public Prosecutions (Cth))
[3]
B W Walker SC with J M Morris and B A P Kelleher for the respondents (instructed by Deacons Lawyers)
[4]
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
[5]
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.
[6]
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ. The Supreme Court of Tasmania (Slicer J) ordered that proceedings on an indictment which charged the respondents with the reckless operation of an aircraft be stayed. The Court's reasons were delivered on 28 April 2008, the primary judge holding that a "stay of proceedings ought to be granted".[1] The order which was entered on 16 May 2008 is recorded as "grants stay of proceedings". It is not in issue that the order had the effect of permanently staying proceedings on the indictment.
The indictment charges the respondents jointly with operating an aircraft being reckless as to whether the manner of operation could endanger the life of another person, contrary to ss 20A(1) and 29 of the Civil Aviation Act 1988 (Cth)[2].
No appeal lies to the Court of Criminal Appeal of Tasmania from the decision of a trial judge ordering a stay of proceedings on indictment[3].
The Crown appeals by special leave to this Court against the order on the ground that the primary judge's discretion miscarried in that he acted upon a wrong principle and that he took into account irrelevant considerations relating to the suggested complexity of the trial. These submissions should be accepted. For the reasons that follow the order staying the proceeding should be set aside.
[7]
The respondents are airline pilots who were the pilot and first officer of a Qantas Boeing 737-400 aircraft on a flight to and from Launceston, which took place during night hours on 23 October 2001. Each of the respondents was responsible for the operation of the aircraft. The Crown alleges that the aircraft took off from Launceston Airport ("the airport") in darkness, without the necessary lighting being turned on. Qantas did not provide scheduled services to Launceston. This was a relief flight that was arranged in order to collect 70 passengers who had been stranded as the result of a mishap.
The control tower at the airport was unmanned between the hours of 10.00pm and 6.00am. The apron and terminal lights at the airport operated 24 hours a day. The taxiway, runway edge lights and the illuminated wind direction indicator ("IWDI"), or windsock lighting, (collectively, "the runway lighting") were not illuminated when the control tower was unmanned. During these hours it was the responsibility of pilots arriving at, or departing from, the airport to turn on the runway lighting. This was done with the Pilot Activated Lighting system ("the PAL"). The PAL was activated by a signal that was transmitted from the aircraft's radio to a receiving device at the control tower. Once activated, the runway lighting remained illuminated for a period of 32 minutes.
The aircraft touched down at the airport at 10.32pm. Before this a signal had been transmitted from the aircraft to the control tower, which had activated the PAL. Thus the runway lighting was on. The aircraft arrived outside the terminal building at 10.34pm. The interval between activation of the PAL and the aircraft's arrival is not known. Accordingly, the end of the cycle of runway lighting commenced by the initial activation of the PAL cannot be determined with precision.
The aircraft moved from the terminal building at 11.01pm. It travelled along taxiway A, instead of taxiway C. Taxiway A was usually reserved for smaller aircraft. It taxied past the Royal Flying Doctor Service ("RFDS") hangar and prepared for take-off at 11.03pm. Its wheels left the runway at 11.05pm. The take-off was observed by Mr Griffiths and Mr Withers, two RFDS pilots, a paramedic and two nearby residents, Mr Walker, an aircraft enthusiast, and Mr Dergacz, a pilot.
Mr Griffiths telephoned the duty operations officer at the airport shortly after the aircraft's departure to enquire whether there was a problem with the operation of the runway lights. The following day he reported the matter to the Civil Aviation Safety Authority ("CASA"). Mr Withers reported the matter to the Air Transport Safety Bureau ("ATSB") on 29 October 2001.
[8]
Qantas was first notified of the incident on 9 November 2001.
On 14 December 2001 CASA appointed an investigator to enquire into the incident. Mr Griffiths, Mr Withers and the paramedic made statements in the course of the investigation in which they said that the runway lighting was not illuminated when they observed the aircraft moving along the taxiway and when it took-off. Mr Walker made a statement saying that he had watched the aircraft as it moved along the taxiway and he had noted that the runway lighting was not on at that time nor during the aircraft's take-off. Mr Dergacz made a statement saying that he had heard the sound of a jet aircraft rotating from the runway and he had looked out of his window and observed that the runway lights were not illuminated.
Statements were taken in the course of the investigation from Mr Gomez, the duty fire officer at the airport, and from Mr Axon, the maintenance engineer on board the aircraft. Mr Gomez watched the take-off with the use of binoculars. He paid attention to the aircraft's engines. When he was interviewed a few days after the incident he was unable to say whether the runway lighting was on or off at the relevant time. Mr Axon was present in the cockpit at the time of the take-off and had no memory of any unusual occurrence.
Each of the respondents was contacted in connection with the investigation and each declined to be interviewed. On 2 January 2002, Qantas wrote to CASA advising that each of the respondents had reported that the runway lights were activated and operating during the take-off. On 15 January 2002, the first respondent made a statutory declaration stating that the runway lights were illuminated for the departure of the aircraft.
[9]
In April 2002 CASA referred the matter to the Commonwealth Director of Public Prosecutions. For reasons that are not explained, complaints were not sworn against the respondents until 30 March 2004. The proceedings came before the Court of Petty Sessions on 8 June 2004. The respondents entered pleas of not guilty on 14 September 2004. The proceedings were listed for a committal hearing between 28 and 30 June 2005. These dates were vacated on the application of the defence. The committal hearing was held between 2 and 4 November 2005. The respondents were committed for trial. Delays associated with the provision of the transcript followed thereafter. The proceedings were listed for trial at the sittings of the Supreme Court commencing 21 November 2006. The trial did not proceed at this time apparently as the result of further difficulties associated with the provision of a complete transcript. On 13 March 2007 the proceedings were adjourned on the application of the defence to allow for the submission of a "no bill" application.
The application for a stay came before Slicer J on 26 November 2007. The application was based on the loss of "primary technological evidence" ("the lost evidence") and on the delay which, it was said, strengthened the "prejudice" flowing from the lost evidence[4].
[10]
The lost evidence comprises the electronic record of the activation of the PAL made by a Monitor at the airport ("the Monitor List") and the information recorded on the aircraft's flight data recorder ("FDR").
The Monitor List contained a record of the last 13 activations of the PAL. A print-out of the Monitor List was obtained two days after the incident. This only contained records of activations on 24 and 25 October 2001.
The FDR recorded the keying of the VHF radio system, the time of transmission and its duration. It did not identify the specific frequency or the purpose of the transmission. Given the time of night at which the incident occurred and the absence of staff in the control tower, an inference could be drawn from the FDR data that a radio transmission was made in order to activate the PAL. Data recorded on the FDR was overwritten after a time. The evidence established that the information recorded on the FDR during the aircraft's flight on 23 October 2001 could have been retrieved within 13 to 15 days of that day.
The PAL was activated by the transmission of three pulses on a frequency specified by the manufacturer. Each pulse was required to be between one and five seconds in duration and it was necessary for all three to be transmitted within a 25 second span. Once activated, the PAL operated for an interval of between 30 and 60 minutes depending on the timer setting. The timer setting at the airport provided for a period of 32 minutes illumination. The system was designed to warn of the impending extinguishment of the lights; during the final 10 minutes of the cycle the IWDI flashed continuously.
There were two distinctive features of the operation of the PAL at the airport. First, if the final pulse was transmitted during or after the 25th second, the lighting cycle defaulted to the concluding 10 minute phase, which was accompanied by the flashing of the primary IWDI ("the straddle effect"). Secondly, Civil Aviation Order 92 required the primary IWDI to be located on the left side of the runway, unless this was impractical. The primary IWDI at the airport was positioned on the right side of the runway. There were two IWDIs at the airport. Only the southern IWDI was configured to flash during the concluding phase of the PAL cycle. The northern IWDI, which was closer to the terminal, remained constantly alight throughout the PAL cycle.
[11]
The primary judge concluded that factors of overall delay and the lost evidence made it appropriate to grant the stay[5]. In arriving at this conclusion his Honour stated the test in this way:[6]
[12]
"[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)
[13]
His Honour purported to state the test by reference to the decision of this Court in Walton v Gardiner[7]. A majority of the Court approved each of the formulations of the test applied by members of the Court of Appeal; "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process".[8] Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case[9].
The respondents acknowledge that the primary judge misstated the test in asking whether the loss of primary data and the delay could constitute an unacceptable injustice or unfairness. However, they submit that a fair reading of the whole of his Honour's reasons discloses that the error was one of expression and not of principle. This submission must be rejected. Throughout the reasons it is apparent that his Honour is directing attention to the risk that the lost evidence may be productive of unfairness to the respondents[10].
His Honour's consideration of the evidence of the "straddle effect" and its significance to the issues in the trial is demonstrative of an approach which addressed the possibility that the trial may be unfair to the respondents because they had lost the opportunity of establishing by objective evidence an hypothesis that was consistent with their innocence. His Honour said this:[11]
[14]
"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.
[15]
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."
[16]
"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."
[17]
His Honour had earlier noted that it was a mandatory requirement that the PAL be activated before the aircraft commenced taxiing. This, it may be observed, is against acceptance of the proposition that retrieval of the data from the FDR would have resolved the issue of whether the runway lights were on at the relevant time since the FDR only records information when the aircraft's engines are running. Activation of the PAL at the airport before the aircraft's engines were turned on while the passengers were embarking, as his Honour posits in the above extract, would not have been captured by the FDR.
His Honour's conclusion was expressed as follows:[13]
[18]
"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."
[19]
An essential element that the Crown must prove in support of the principal and alternative counts is that the runway lighting was not on at the time the aircraft moved along the runway and took-off. The lost evidence goes to this issue as does the testimony of witnesses whose accuracy and reliability may be affected by delay. The appellant correctly submits that his Honour's consideration of the complexity of the joint trial involving possible "defences" of mistake of fact under the Criminal Code (Cth) was not relevant to any issue raised by the application.
His Honour had earlier concluded that the delay alone would not warrant a stay of proceedings[14]. He distinguished between the delay to the date the complaints were laid and the subsequent delays associated with the court proceedings. However, his ultimate conclusion was based upon the loss of the primary evidence and "overall" delay. It was not explained how the overall delay operated in combination with the lost evidence to create irremediable prejudice to the respondents, nor did his Honour address the circumstance that at least some of the delay was attributable to the conduct of the defence[15]. On the appeal the respondents do not rely on the overall delay but maintain that the unexplained delay of two years and three months before the complaints were laid occasioned prejudice in that they had lost the opportunity to obtain the early recollection of witnesses. It is to be noted that the respondents were on notice of the allegation not later than 2 January 2002.
The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay[16]. They seek to distinguish their case on the basis that the loss here is of the independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event.
The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. 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[17].
[20]
R v Edwards and Sarunic [2008] TASSC 17 at [60]. ↑
[21]
In the alternative, the respondents are charged with operating an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person, contrary to ss 20A(2) and 29 of the Civil Aviation Act 1988 (Cth). ↑
[22]
R v Edwards and Sarunic [2008] TASSC 17 at [7]. ↑
[23]
R v Edwards and Sarunic [2008] TASSC 17 at [60]. ↑
[24]
R v Edwards and Sarunic [2008] TASSC 17 at [59]. ↑
[25]
Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ (emphasis added). ↑
[26]
Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ. ↑
[27]
R v Edwards and Sarunic [2008] TASSC 17 at [20], [38], [39], [40], [43], [44], [56] and [57]. ↑
[28]
R v Edwards and Sarunic [2008] TASSC 17 at [36]-[37] (emphasis added). ↑
[29]
R v Edwards and Sarunic [2008] TASSC 17 at [56]. ↑
[30]
R v Edwards and Sarunic [2008] TASSC 17 at [60] (emphasis added). ↑
[31]
R v Edwards and Sarunic [2008] TASSC 17 at [20]. ↑
[32]
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. ↑
[33]
Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, 47 per Brennan J; Williams v Spautz (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; [1992] HCA 34. ↑
[34]
R v Carroll (2002) 213 CLR 635 at 657 [73]; [2002] HCA 55. ↑
[35]
Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J; [1995] HCA 66; R v Carroll (2002) 213 CLR 635 at 657 [73] per Gaudron and Gummow JJ; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 265-267 [9]-[15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27. ↑
[36]
Jago v The District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, 60 per Deane J, 77-78 per Gaudron J; R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; [1992] HCA 16; see also Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60. ↑
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.
The respondents did not give evidence at the hearing of their application.
The respondents submit that in the event error is established their application should be remitted to the Supreme Court of Tasmania given what is described as "the complexity of the factual matters". This submission should be rejected. The exercise of the primary judge's discretion has been shown to have miscarried. It is open to this Court to reach its own decision in substitution for that of the primary judge in circumstances where, as here, the materials are before it[18].
It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition[19]. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. 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. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence.
There is no feature of the delay that justifies taking the extreme step of permanently staying proceedings on the indictment. It has not been established that any prejudice arising by reason of the delay cannot be addressed by direction[20].
For these reasons the appeal should be allowed, the order of the Supreme Court of Tasmania entered on 16 May 2008 should be set aside and in its place the application for a permanent stay of proceedings on the indictment should be dismissed.