R v Hatfield [1999] NSWCCA 340

R v Hatfield [1999] NSWCCA 340

The majority held that, notwithstanding the loss of physical exhibits and counselling notes and any prejudice that may have resulted, the circumstances did not establish the exceptional or extreme case required for a permanent stay. The missing firearm did not shown prejudice; the significance of the missing clothing and blanket was limited because the Crown conceded the applicant's clothing had no significant gunshot residue or blood and any inference depended on accepting the applicant's account of what she wore; the missing counselling notes might have prejudiced cross-examination but their contents were unknown and deliberate or grossly negligent destruction could not be inferred....

Jurisdiction
Australia
Judgment Date
28 October 1999
Procedural Posture
Criminal Application for Leave to Appeal Pursuant to Section 5 F of the Criminal Appeal Act, 1912 / Interlocutory Appeal to the Court of Criminal Appeal From Grove J's Refusal of an Application for a Permanent Stay of Murder Proceedings
Outcome
Leave to appeal refused.
Legal Topics
['murder' 'permanent Stay of Proceedings' 'unfair Trial' 'lost Evidence' 'counselling Notes' 'cross Examination' 'admissibility of Evidence' 'discretionary Judgment' 'leave to Appeal']
['criminal Law' 'criminal Procedure' 'evidence'] ['murder' 'permanent Stay of Proceedings' 'unfair Trial' 'lost Evidence' 'counselling Notes' 'cross Examination' 'admissibility of Evidence' 'discretionary Judgment' 'leave to Appeal']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Pursuant to Section 5 F of the Criminal Appeal Act, 1912 / Interlocutory Appeal to the Court of Criminal Appeal From Grove J's Refusal of an Application for a Permanent Stay of Murder Proceedings

Legal Issues

  1. 1 ['Whether leave should be granted to appeal against the refusal of a permanent stay of proceedings on a murder charge.' 'Whether the loss of the firearm, silencer, clothing, blanket and glass since 1985 or 1986 caused prejudice such that the applicant could not receive a fair trial.' "Whether the loss of counselling notes concerning consultations between Mr Busby and Mr Peinecke prejudiced the applicant's ability to cross-examine and challenge Mr Busby's evidence." 'Whether the Court should infer that the counselling notes were lost through deliberate or grossly negligent conduct by Mr Busby and/or Mr Peinecke.' "Whether Ridgeway v R required exclusion of Mr Busby's evidence and therefore a stay of the proceedings." 'Whether the combined effect of the lost physical exhibits and counselling notes created a fundamental defect going to the root of the trial that could not be remedied by the trial judge.']

Ratio Decidendi

The majority held that, notwithstanding the loss of physical exhibits and counselling notes and any prejudice that may have resulted, the circumstances did not establish the exceptional or extreme case required for a permanent stay. The missing firearm did not shown prejudice; the significance of the missing clothing and blanket was limited because the Crown conceded the applicant's clothing had no significant gunshot residue or blood and any inference depended on accepting the applicant's account of what she wore; the missing counselling notes might have prejudiced cross-examination but their contents were unknown and deliberate or grossly negligent destruction could not be inferred....

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.']