A night mission

Judicial decisions must be based on adequate grounds, and a decision to stay proceedings is no different. In R v Edwards [2009] HCA 20 (21 May 2009) the High Court overturned the Supreme Court of Tasmania’s decision to enter a stay. That Court (SlicerJ) had, held the High Court in a unanimous judgment, acted on a wrong principle and taken into account irrelevant considerations relating to the suggested complexity of the trial.

The charge was reckless operation of an aircraft. The recklessness was alleged to be taking off in darkness without the necessary runway illumination. Five people outside the aircraft saw that the takeoff was done without this lighting. Through delay in the proceedings electronic records of the operation of the lights was lost.

The respondents, the two pilots of this Boeing 737-400, sought a stay because of this loss of evidence. Slicer J put the test as “whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness” (emphasis added by the High Court at para 22)

The test, however, is not “could”, but “would”: “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”: Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ.

The High Court summarised Slicer J’s errors as

” … [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” [Footnote: See Jago v District Court of New South Wales [1989] HCA 46; (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.]

On appeal, the “overall delay” point was not relied on by the respondents, but their argument was that “the loss here is of the independent record of the event giving rise to the charge. This is … productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event.”

Not so, said the High Court. There is nothing unusual in a court having to consider an incomplete account of events:

“31. 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 [Footnote: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 47 per Brennan J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; [1992] HCA 34.]”


“33. 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 [Footnote: Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J; [1995] HCA 66; R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at 657 [73] per Gaudron and Gummow JJ; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265-267 [9]- [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27.] 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 … [missing evidence] is unknown. In these circumstances it is not correct to characterise … [its] 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.”

It could not be established that any prejudice arising from the delay could not be addressed by a direction (para 34, citing Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 60 per Deane J, 77-78 per Gaudron J; R v Glennon [1992] HCA 16; (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).

This case illustrates that more is required for a stay than merely a complaint that evidence that might have assisted the defence is lost. It is not sufficient simply that the evidence would have been relevant to an issue in the case, it needs to be shown that the missing evidence would have tended to establish a proposition that would assist the defence. Loss of the evidence may mean that prosecution evidence is uncorroborated, and the court may properly be cautious for that reason, but that goes to weight. A stay is a drastic remedy and is not given on a whim. As I have noted in relation to risk of unfairness (see, for example, entries for 19 July 2005, 1 May 2006) it is appropriate to look at this as a question of fact rather than as an “evaluation”. Is there a real risk that the lost evidence would have had probative value for the defence? In the present case, some evidence that the takeoff had been illuminated by the runway lights would have been needed: the respondents had not given evidence at this pre-trial application. Whether evidence from them would have been enough to give rise to a risk that could not be dealt with by a direction cannot be ascertained from this judgment: the High Court ordered that the application for a stay be dismissed. Could a fresh application based on further evidence be made, or would that be an abuse of process as the applicants have had their opportunity? You decide.

Also decide whether the High Court has inappropriately merged the reluctance of the court to grant a stay with the receptiveness of the court to the risk of unfairness.

%d bloggers like this: