R v Edwards & Anor [2008] HCATrans 407 (5 December 2008)

Last Updated: 8 December 2008

[2008] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H3 of 2008

B e t w e e n -

THE QUEEN

Applicant

and

PETER MAXWELL EDWARDS

First Respondent

STEPHEN SARUNIC

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON FRIDAY, 5 DECEMBER 2008, AT 9.31 AM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR I.M. ARENDT, for the applicant. (instructed by Director of Public Prosecutions (Cth))

MR P.G. GARLING, SC: May it please the Court, I appear with my learned friends, MR J.M. MORRIS and MR B.A.P. KELLEHER, for both respondents. (instructed by Deacons Lawyers)

HAYNE J: Yes, Ms Abraham.

MS ABRAHAM: Your Honour, this application raises the question of the proper approach to the determination of an application for a stay in a criminal trial for an abuse of process where that application is focused on the destruction or absence of evidence.

HAYNE J: What is the evidence that is said to have been destroyed or is absent? There is the cockpit voice recording and other such data, but that went about 15 days after the alleged incident, did it not?

MS ABRAHAM: Yes, there are three items of evidence. The voice recording was gone within 30 minutes, so I do not believe anyone has any complaint about that, the plane having had landed by the time that had been overridden. The monitoring list at the airport, which is an optional list, only keeps 13 activations and would have been gone in 24 hours. The data recording from the cockpit – what is referred to in the papers as the FDR – 14 days, and so it was gone at the outset. Whilst his Honour in this case linked this and put it with the factor of delay, this being the destruction, the absence of the evidence has nothing to do with the question of delay.

In the applicant’s submission, this is a matter of general importance because in this instance his Honour applied the wrong test in reaching the conclusion he did, but in so doing, it is against a background where there are a number of decisions in a number of States which, when the application appears to be focused on the destruction of evidence, they formulate particular tests. This test, if it is allowed to stand, in the Crown’s submission, is patently wrong.

HAYNE J: Where do you say that test is and most conveniently found?

MS ABRAHAM: Paragraph 59 on application book 18:

The test to be applied is whether the combination of loss of primary data or evidence –

Your Honours can see that first sentence.

HAYNE J: What is the error?

MS ABRAHAM: In my submission, it is not sufficient that it could constitute unacceptable injustice or unfairness. The authorities, Jago, Walton v Gardiner and the like, have always talked of “would” and, in addition, his Honour has not performed the balancing exercise that is referred to in Jago and Walton v Gardiner. That it is obvious that from the start he was looking at the question of “could” becomes apparent in paragraph 20, which is at page 10, where, particularly at the end of that paragraph, having recognised that delay in this case would not warrant, his Honour talks in terms of “could” and “a risk”, the concern, of course, being, if this judgment stands uncorrected, then it clearly is capable of being followed.

Now, I appreciate it is a judgment of a single decision of the Supreme Court but, as is obvious from the judgments that his Honour referred to, many of the judgments in this area are actually judgments from single Supreme Court judges either on the application from a magistrate or local court or a ruling prior to trial.

KIEFEL J: What importance do you say his Honour placed upon the absence of the primary material?

MS ABRAHAM: Far too much.

KIEFEL J: How did he approach it though?

MS ABRAHAM: In my submission, he actually describes it as critical and, in the Crown’s submission, that is an incorrect description. He speculated particularly, it is apparent, at the bottom of paragraph 36 on page 13, which is picked up towards the end of his judgment as well. He speculates that, if this evidence existed, then in some way it could reconcile with the civilian witnesses. In the Crown’s submission, that is not so. His Honour, in doing that, also found that without it, without the evidence, the question becomes whether the lights were on or not. With all due respect to his Honour, the question was whether the lights were on or not. It could never reconcile with the civilian witnesses because the theory being postulated that is said to reconcile is this, that the lights were activated but because one has to, in effect, push the thing three times, if you do it, the third time is not within 25 seconds as it is supposed to be but straight on the 25th second, the lights will only go on for 10 minutes.

So the theory is supposed to be that that is potentially what happened and that the plane is taxiing down the taxiway, then turns, goes down the runway and, as the plane takes off, the lights go off. That cannot sit with the evidence of the witnesses. In particular, the pilots at the hangar see there are no lights on the taxiway, that is what their attention is drawn to, 50 or 70 metres from them as the plane is taxiing along in the dark. One goes out and actually watches the plane. So there is no question of reconciliation. The issue in the trial indeed is, were the lights on or not, with respect, and his Honour tended to say that that was not the issue when in reality, in my submission, it is.

HAYNE J: These events are alleged to have occurred as long ago as 2001.

MS ABRAHAM: That is correct.

HAYNE J: In 2009, if you got leave, you would be coming into the High Court. It is a very long time.

MS ABRAHAM: That may well be so, your Honour, but whilst the question of destruction of the evidence here does not - - -

HAYNE J: No, I am not talking about the evidence. I am just talking about the fact this is a very long between an incident of this kind – I am not saying if it occurred it is not a serious incident, if it occurred – but what has been going on, Ms Abraham, that here we are eight years on and this issue has not been resolved?

MS ABRAHAM: Your Honour, there clearly was some delay in the charge being laid. However, once the charge was laid, there was delay through the court processes which, in the applicant’s submission, is not attributable to the applicant. The applicant attempted on repeated occasions to get the committal listed, to get the trial date listed and the like, and objection matters were pushed out, the counsels availability and the like. But, your Honour, a lot of trials occur where there is some delay. Here there is no effect, in my submission, on the evidence and, far from his Honour – it is a bit unclear how his Honour linked delay with the question of the stay because the closest it gets to, with respect, is in paragraph 60, that it might be “word on word”. In effect, “memory, might”, the implication being their memory might not be as good, which is a point that he had previously made in paragraph 20.

But, your Honours, we are talking about a discrete incident such that when the pilot saw that this plane was taxiing past, did something about it because they had to use the runway. So it is not a question of memory becoming unreliable or the like, quite to the contrary. So the delay, in my submission, can have no effect on the trial process. The problem is, with respect, your Honours, that there are already decisions of a number of State courts which are inconsistent. They are acknowledged by those State courts to be inconsistent because they keep saying, “We’re not going to follow this case in South Australia. We don’t like the one in New South Wales”. New South Wales says, “We don’t follow the one in South Australia”. The Western Australian court says, “We’re not following either South Australia or New South Wales”. There are two decisions in South Australia in the last month, one of which applied the South Australian case of Bourke, a judgment of Justice David, and three weeks later his Honour the Chief Justice raised that he had concerns about Bourke, as indeed were expressed in New South Wales, and he agreed with that view.

HAYNE J: Can you encapsulate what you say the differences are that you say can be identified?

MS ABRAHAM: Your Honour, they range, in my submission, one extreme from an approach where the test is said to be whether the accused has been denied an opportunity to corroborate his version of events, and that is what the test in Bourke, the South Australian case, adopted, and has not been applied, through to tests that are more – they are talking about whether the proceedings, and quite properly, can no longer serve the purpose for which they were intended, which is perfectly correct.

HAYNE J: I wonder whether the repost that is not to be made to those complaints is that the principle, being a principle of abuse of process, is in its particular applications very fact specific. The principle is not to be articulated more precisely than you find in Walton v Gardiner, particularly at page 398, and see what the Court more recently said about abuse of process in a civil case about abuse of process, the name of which escapes me, but there we are.

MS ABRAHAM: Your Honour, the problem with that is, yes, Walton v Gardiner and Jago and all the cases say these are the principles, but, with respect, when it has come to this particular area, the courts have chosen, for whatever reason, to reformulate them in some way. If the test that is now applied in Tasmania, or if this case joins, as it no doubt will, those that are referred to elsewhere, if it is as low as could constitute an unacceptable risk, that is just plainly contrary to Jago, in my submission, and Walton v Gardiner and the like.

In my submission, in a circumstance where – it is not the facts that create this problem, with respect. In my submission, the differences between the various States are not factually based and that is apparent by a reading of the judgments because they recognise in the other States that the judgments are different. If it was purely factually based, then that would not be an issue. It would turn on its facts and ultimately these questions do have to turn on their facts, but, with respect, the law has to be right in the first place. So if this is not corrected, what one has is a judgment which lowers the standard that Walton v Gardiner and Jago require, phrase it in a different way and, indeed, then, in my submission, takes away the requirement of undertaking the balancing process.

So, in my submission, in circumstances where the evidence has gone because there is no – delay has got nothing to do with it but the evidence has gone nonetheless – that is a circumstance which is not unusual by any stretch of the imagination. If a rape victim were to go and complain two days after the rape as opposed to at the time, the evidence will be gone. If one posed the test, could that constitute an unacceptable risk or, to pose the test as applied in a case in South Australia, denied an opportunity to corroborate, it is fairly easy test, with respect, to pass and, in my submission, that is not correct.

In my submission, if the proper approach was applied in this case, the application would not have been granted. The length of time between the event and the trial does not affect the quality of the evidence of the eye witnesses, quite to the contrary. No disrespect to the learned trial judge, in my submission, the issue in this case was simple and that is, were the lights on or not? In my submission, this does provide an appropriate vehicle to consider the issue of destruction of the evidence. It is an issue that is obviously been raised and raised not infrequently and, in my submission, if this is allowed to stand, then that approach will be perpetuated. Indeed, we are aware, I am informed, that this case is being relied on in another case already in Tasmania and, in my submission, that is a matter of concern. If one looks at the cases referred to by the learned trial judge in paragraph 59, by far the majority are single instance judges that have given decisions.

CRENNAN J: Inasmuch as loss of evidence can occur from time to time, it is a matter that can be dealt with by direction.

MS ABRAHAM: Absolutely, and that is the Crown’s submission. In relation to Longman, one is talking 20 years ago. In Longman there were clearly directions that could be given and the purpose of the directions is to ensure the jury appreciate the matter. With respect, a direction could clearly cure it here. The defence can and well and truly run the lights might have gone off because we do not have the evidence. So, in my submission, it is a classic case where it is no different to any other. The status of the evidence has been elevated to something it is not. At the same time, the bar has been lowered with the consequence that it has been stayed but with, in my submission, the very important consequences, that it has ramifications not just for this case but it has ramifications for other cases and it is an area that is being argued not infrequently in the courts and, with respect, likely to be argued in circumstances where trials are arising that are occurring after the event.

Whilst the destruction was not due to delay here, it often does occur in the instance of delay, and those sorts of trials clearly occur on not an infrequent basis. So, in my submission, a very important point. In answer to your Honour Justice Hayne. If the law, with respect, is clear from Jago and the like, it is clearly not being applied. In my submission, it is important that it is stated how it ought to be applied in these particular cases where there seems to be a thought that one needs to, in effect, pose a different test; it is a different scenario and it is clearly not. Those are my submissions.

HAYNE J: Yes, Mr Garling.

MR GARLING: If the Court pleases. Your Honours, we submit that the very nature of the exercise of this jurisdiction is well governed by the principles which this Court has dictated in the cases to which my learned friend has referred. The trial judge made no error in the application of those principles. At paragraph 58 at page 18 of the application book, his Honour, when coming to consider the application of the facts to principles, makes an entirely unexceptional and perfectly correct statement. He says:

This Court has an inherent power to stay proceedings . . . which ought only be exercised in the most extreme circumstances and only where no other remedy can be found to rectify the prejudice.

Your Honours, that is what his Honour has done here and he has not proceeded on any error of principle.

HAYNE J: What do you say would make the trial of this indictment so unfairly and unjustifiably oppressive to your clients as to constitute an abuse?

MR GARLING: May I answer that question in this way, your Honour. The flying of aircraft properly is closely regulated for the safety of the public. The Civil Aviation Act provides a regime of regulation, including the offences here. They are made strict liability offences by reason of that Act. The context in which those offences occur is the regulatory context, namely, that mandated records are kept by a variety of participants in the regulated scheme. The purpose of the mandated records is to put beyond doubt the fundamental questions of fact of what happened, when and what else accompanied that conduct.

In this case the mandated records known to CASA – remembering, your Honours, that CASA knew of this incident on the following day – the trial judge finds, and it is clear, that on the very next day after this incident CASA was aware of what is said to have occurred. The mandated records might in the Rumsfeldian theory provide no knowns. Why is that, your Honours? That is because the regulated mandated records tell you what happens. On the ground the Launceston Airport records record at what moment in time the lights came on and at what moment in time the lights went off.

HAYNE J: Be it so - - -

MR GARLING: I anticipate what your Honour is about to put to me, if I may be so bold as to do that. The flight data recorder records the activation of the radio transmission. The third point is this. A known unknown in this case was that there were defects in the operating system at Launceston Airport not known to the pilots. Now, recklessness has a subjective and objective element. The pilots can have activated by the radio the lighting system. It fails to operate as mandated. The record which tells you how in fact it operated is not retained, no attempt is made to retain it. So that one is now in the realm at this trial of having to say we do not know what the underlying facts of this are.

HAYNE J: We are in a trial where, if witnesses swear up to proof, always a question, there would be oral evidence tendered which says, “I observed ABC”. The defence would be in a position where it would say there were records maintained of this information to which we cannot have access. Was that the position at trial?

MR GARLING: Yes, but it is more than that, your Honour, with respect. We should have had access to it because the second part of the regulatory regime is that CASA is entitled and, indeed, in the exercise of its public safety function has a range of possible steps it can take immediately to say, “Those two pilots should stop flying until we find out what the facts are. Let’s get the facts and they either go back in the plane or they stay out of the plane”. We are now eight years later with these pilots continuing to fly and no complaint at all. One comes down to this fact, where, as the trial judge correctly says, in a strict liability context it is a word on word trial. The significance of that is twofold. One is we complain about the failure to speak to relevant eyewitnesses at the time, so that there is actual prejudice. Certain witnesses say, as the trial judge records, “I now have no recollection of something that was part of my function to have observed”. Two people, the relevant fire officer at the airport with his binoculars observing the plane take off, and the second was somebody delightfully known by the nickname of “the flying spanner”, that is to say, an engineer who flies in the cockpit of the aircraft. In other words, a trained professional flying in the cockpit of the aircraft says, “I now have no recollection of that night”. So there is actual prejudice in terms of recollections. Mr Gomez, the fireman, has no real recollection.

HAYNE J: How common an event is that at a criminal trial?

MR GARLING: Your Honours, in one sense, of course it is common, but the Crown may well proceed in cases like that with circumstantial evidence which establishes the case externally. This is a case where the evidence which ought, by the regulatory scheme, have been present is not collected by the complainant. That is the point. It does not matter if it is one day, seven days, 14 days, your Honours. This is a highly-skilled regulatory investigator. All they have to do on the evidence that his Honour accepted was pick up the phone and say, “Please do this”. This is not a complex police investigation having to take a long time. They do not do it. Then the delay that is relevant, your Honours, with respect, is this.

The incident is 23 October 2001, so realistically, assuming leave were granted, the appeal was successful and a trial was held, one is looking at, I would submit, at least eight years, if not more, after the event. Secondly, that in March 2002, that is to say, within four months or five months or so, as the trial judge finds, paragraph 38, page 14 of the application book, an expert check pilot at Qantas describes a set of facts and theory which is absolutely consistent with innocence of the offence, but consistent with the witnesses’ recollections. That is not then the subject of any careful investigation. Why do I raise that, your Honours? Not to say we get anything from the failure of investigation, but to say at the outset it is clear that the relevance of these records and their importance to how one might view the events is critical.

KIEFEL J: But not to that account, are they, because the – if I am right, in taking from his Honour’s reasons that the evidence which is unavailable does not necessarily solve the question of whether or not there was a straddle.

MR GARLING: Yes, it does, your Honour, might I say, in two respects. One, the Launceston monitor list, as it is called, which shows precisely when the lights went on or off. So that would show if the lights were on as that theory postulates, from the moment at which they go off. But the FDR, the flight data recorder, the black box, would record the straddle because the time of the three inputs into the radio is recorded in, I think it was said to be, one-second intervals.

KIEFEL J: What does his Honour then mean at paragraph 49, page 12 of the reasons:

The data would have confirmed or refuted activation or its attempt. Whether it would have identified a “straddle” is problematic, but there is no evidence before this Court that it could not do so.

MR GARLING: Precisely, your Honour, it is the one-second intervals. The evidence before the court was that the flight data recorder recorded, so far as its radio activation was concerned, signals sent at one-second intervals. So one might get the debate as to whether it fell on one side of the recording or the other and therefore whether it was 25 seconds or less or 25 seconds or more. It is a very momentary complication, if it be one, your Honour. At paragraph 52 at page 13 of the judgment, application book 17, at about lines 28 and 29, the evidence of the expert, Mr Gibbens concludes:

I believe it should be possible to infer from FDR data that the VHF radio was activated for the purpose of activating the runway lighting.

I think, because the expert correctly has used words such as “infer”, because one is interpreting, that is perhaps the explanation for what his Honour there says. Your Honours, I was giving a quick chronology. May I return to that because it is important, with respect. The complaints against my clients were first sworn on 30 March 2004, that is to say, two and a half years after the incident. No explanation was proffered before the trial judge as to the reason for that delay, none at all.

HAYNE J: Let it be assumed – this may very well not be the fact, but let it be assumed that the elapse of time is something that lies wholly at the door of the prosecution side. What follows from that fact?

MR GARLING: There is no finding in this case of prosecutorial misconduct of a kind which would be visited in different ways. Nothing particularly falls from that except, your Honour, this, that it seems to us there is a submission made by the applicants in this case that submits to the Court that my clients are primarily responsible for the delay. I seek to answer that submission - - -

HAYNE J: Let us go forward on an assumption which may well be entirely unjustified, that if there were delay in this case, the delay is none of your doing and it is all the opposite parties doing. As I say, there may be real debate about that, but be it so, so what?

MR GARLING: May I answer that, your Honour. Eight years in this circumstance. As the trial judge finds, the three eyewitnesses who say, “We stood out the front of the terminal. We saw the aeroplane go by and there were no lights on” make a fundamental error in their statements, acknowledged by the Crown. It is this. We knew it was the Qantas aircraft because there were floodlights lighting up the red tail and the white kangaroo. The investigator in due course goes to the aircraft, has a look, takes a photo, no floodlights lighting up the tail of the aircraft.

Now, may I anticipate from the Court this proposition. That is to your advantage. You have an eyewitness who has made a fundamental error. May I respond to that anticipated point in this way. It is the very nature of what one has now by reason of a delay which is presumptive prejudice, if I may use that expression, actual prejudice where certain eyewitnesses now have no recollection at all, and faulty eyewitnesses, which puts a construct before the jury of what we would submit in the absence of the objective records in a strict liability case is a fundamentally flawed trial.

This is not a case where any of the evidence has such strength or cogency or is not open to attack that means we can have a fair trial against the context that I put to the Court earlier of this very tight, and appropriately so, regulatory context. That is why we say, with respect, as the trial judge correctly said, a word on word trial in the absence of this material, at this remove, would be unfair to my clients.

May I respond in one thing in particular to what my learned friend said. My learned friend put a submission that the trial judge did not engage in the appropriate balancing exercise that was required. In my respectful submission, that is exactly what his Honour did. His Honour recognised in paragraph 21 that the issue was not just whether fairness to the accused was the single yardstick, but whether in the result the process would not be an appropriate one. At the conclusion of his judgment he is careful to say it is neither just loss of evidence or delay, it is really looking in the complex circumstances of this case of the combination of those two in the particular circumstances that bespeaks the very balancing exercise.

HAYNE J: And balancing to demonstrate that the trial would be unfairly and unjustifiably oppressive.

MR GARLING: Yes.

HAYNE J: And would be, not could be. Do you accept that that is the relevant aspect of abuse that if engaged is engaged in this case?

MR GARLING: It is not a mere possibility. It has to be that the trial judge forms a conclusion that the resulting trial would have the features that the court decides. But, with respect, your Honours, that is exactly what he does when he says it is only to be exercised in the most extreme circumstances and only when no other remedy can be found.

Your Honours, the point, if I may make this submission, with respect, to the broad wave of the hand by my learned friend to say, missing evidence, it is a matter of direction. No. And the fundamental problem here was, in front of a very experienced trial judge, my learned friends at
trial of the hearing of this application were not able to hand up to the trial judge a document saying here is precisely the directions that one could give which would obviate the prejudice that occurs and indeed the directions that are formulated in the written submissions do not address that. They simply say there is no evidence on this point. That is not a direction which addresses prejudice. That is a direction which prevents speculation appropriately, but it does not address prejudice, in our respectful submission. For those reasons, your Honours, we would submit that leave ought not be granted.

HAYNE J: Just before you sit down, Mr Garling, is it plain that there is no appeal to the intermediate court?

MR GARLING: No.

HAYNE J: Sorry, is it plain or not plain?

MR GARLING: We do not accept that it is plain at all, your Honours. This was an application in the inherent jurisdiction of the Supreme Court. It was not an application under the code or under any Act.

HAYNE J: No, but it is an application in a criminal trial, what would give that court’s Full Court jurisdiction to hear an appeal?

MR GARLING: We submit that, it being part of the inherent oversight process of the criminal law, the court being a superior court, a record has all the necessary jurisdiction to address it.

HAYNE J: An appeal is a statutory process, Mr Garling. To what statutory provision do you point as giving the Full Court a jurisdiction?

MR GARLING: I cannot point to a specific statutory provision, your Honour.

HAYNE J: Yes, thank you. Yes, Ms Abraham.

MS ABRAHAM: Three brief matters. Your Honour, the first relates to whether the appropriate test was applied. My friend has repeatedly stated that it was, took your Honours to paragraph 58 and then said that a balancing exercise occurred. He has now conceded, with respect, that the word “could” is not the correct approach and that is the test that his Honour applied. He says so. He says, “The test to be applied” in paragraph 59. There is no authority that supports that and, in my submission, a proper reading of the judgment, there is no balancing exercise and one cannot be gleaned from it.

The second point, your Honour, is in relation to this question of straddling and recklessness and the like. On no scenario can the eyewitnesses and the straddle theory be reconciled. Ignore what the Qantas man might have said in an email at some stage, they cannot be because, on the straddle theory, the taxi, runway lights would be on and the runway lights and they only go off as the plane takes off. These witnesses see the taxiing lights which are outside the hangar not on. So, in my submission, again it does not have the significance suggested.

Thirdly, word against word is a common form of criminal trial. It occurs in trials where there has been the possibility of other evidence, forensic evidence and the like, but they occur nonetheless. The suggestion that these three witnesses, because they are concerned about where the flying kangaroo was on the tail, is a matter of classic jury question. What these witnesses do do though is go out and watch and are so concerned because they are about to take off that they make an inquiry, are the lights working? And they take off within 15 minutes and the lights are working. In my submission, a classic jury question. In my submission, there is a clear error that does need to be rectified and it does have implications.

HAYNE J: Thank you, Ms Abraham. The Court will adjourn for a time to consider the course it will take in this matter.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

HAYNE J: There will be a grant of special leave in this matter. How long would counsel consider the case likely to take? It would surely be less than a day, I would have thought.

MS ABRAHAM: I would have thought half a day.

HAYNE J: Mr Garling, what do you say?

MR GARLING: Your Honour, it would be more than half a day.

HAYNE J: But less than a day?

MR GARLING: I would finish within a day only because I anticipate some discussion about technical effects of evidence and what is or is not there, which engaged the trial judge for three days.

HAYNE J: I understand that. I suspect a day would be the amount to allow. There will be a grant, as I say.

The Court will adjourn to reconstitute.

AT 10.12 AM THE MATTER WAS CONCLUDED