DPP v Cross

Procedural history

7. It is necessary to carefully set out the procedural history of the matter as it provides important context for the timing of this application and its determination.

8. The affidavit material filed in support of the application and in opposing it, revealed the following chronology none of which was in dispute: (i) The matter was committed for trial on 25 July 2024. A pre-trial questionnaire was filed by the prosecution on 9 September 2024 which did not refer to the expert evidence of Mr Chang. On 5 November 2024 an updated pre-trial questionnaire was filed by the prosecution. Again, it did not include any reference to Mr Chang’s evidence. (ii) The accused was arraigned on 23 October 2024 and the matter was listed in the call over on 18 November 2024. On 23 October 2024, orders were made by Baker J pursuant to s 78 of the Court Procedures Act which relevantly included that the prosecution was required to file a notice of the intention to rely on expert evidence by 20 November 2024. On 13 November 2024, the callover listing for this matter was vacated and the matter was placed in the callover on 3 March 2025. On 3 March the matter was listed for judge alone trial to commence 11 June 2025. (iii) On 7 June 2024 the accused provided the prosecution with a notice of alibi, which identified that he was at home asleep at the time the acts were alleged. (iv) On 18 July 2024 the brief of evidence was served on the accused’s solicitor. This brief contained the statement of Mr Gregory Palethorpe. Mr Palethorpe is an employee of Australian Federal Police (AFP), in the Forensics Geospatial team. (v) On 11 September 2024 the accused’s representative, Mr Chen, enquired with the prosecution via email whether they would be presenting expert evidence on “Geospatial Mapping evidence” in the accused’s trial. (vi) On 31 October 2024 the prosecution filed and served a notice to adduce expert evidence from Mr Palethorpe. On 1 November 2024, Mr Chen notified the prosecution via email that he did not accept Mr Palethorpe as an expert in the area about which his opinion was to be adduced. Mr Chen accurately observed that in his statement Mr Palethorpe did not claim to be an expert, nor agree to be bound by the expert code of conduct. Mr Chen set out the basis for his position with respect to Mr Palethorpe’s ‘expertise’ which went to his capacity to accurately interpret mobile phone geospatial mapping data. (vii) On 18 December 2024 Mr Chen again emailed the prosecution. Mr Chen expressly addressed three possibilities that he anticipated might face the prosecution. First, that the prosecution had determined to obtain expert evidence about the geospatial mapping data in which case Mr Chen stated that he “would not oppose an extension of the expert notice deadlines” so that an expert in that field could be obtained. Secondly, that the prosecution had determined not to seek any expert evidence on the geospatial mapping data, in which case he would file an updated questionnaire and indicate that there would be an objection to Mr Palethorpe’s opinion being admitted which could be dealt with at the outset of the trial. Finally, Mr Chen observed the following “if your office needs time to consider its position regarding whether to retain an expert, I would not be opposed to an extension regarding the expert notice deadlines”. (viii) On 19 December 2024 the prosecution emailed Mr Chen and informed him that the Director’s position would be confirmed “before” the March 2025 call telling Mr Chen it “which would allow us both to file updated questionnaires as required”. (ix) On 13 February 2025 the prosecution emailed the informant and requested he make inquiries to find an expert to interpret the telecommunication data. (x) On 21 February 2025 the prosecution notified the accused’s solicitor that a statement from a telecommunications expert was “anticipated” and further “noting the timeframe for the expert disclosure has already lapsed”, it was “anticipated” that an application would be made to vary the disclosure timetable once the prosecution knew when the statement would be “due”. (xi) On 3 March 2025 the matter was dealt with in the call over and the trial was listed. The outstanding expert evidence was not drawn to the attention of the Court. (xii) On 20 March 2025 Mr Chen sought an update from the prosecution. The prosecution responded on the same date informing Mr Chen that they were awaiting a response from the informant. (xiii) On 9 April 2025 four statements were received by the prosecution from Optus employee, Mr Raymond Chang. The statements were served on Mr Chen on the same date. (xiv) On 10 April 2025 the prosecution asked Mr Chen if the prosecution’s application to “vary the timeframe” would be by consent. (xv) On 11 April 2025 Mr Chen wrote the prosecution seeking clarification on some of Mr Chang’s evidence. On 16 April 2025 Mr Chang responded to Mr Chen’s queries. (xvi) On 23 April 2025 Mr Chen notified the prosecution that the application to vary the timetable would be opposed. (xvii) On 6 May 2025 the prosecution filed an application in proceeding to vary or waive the pre-trial disclosure requirements. On 21 May 2025 the prosecution filed an amended application seeking only to waive the pre-trial disclosure requirements. Mr Chang’s Report

9. Mr Raymond Chang is a senior technical specialist in state radio panning and quality at Optus Administrate Pty Limited. He was first employed by Optus in 1998 and has held his current role since October 2013. He obtained a Bachelor of Engineering from the University of New South Wales in 1993 and has over 28 years’ experience in the mobile telecommunications industry.

10. The prosecution seeks to adduce evidence from Mr Chang’s consistent with four statements he authored. There was no challenge to Mr Chang’s status as an expert. The evidence was accepted by the accused to be relevant evidence. For the purposes of the application, Mr Chang’s evidence can be summarised as follows.

11. Optus supply mobile telecommunication services and are required to have a network of sites that use antennas and radio waves to communicate with mobile devices. These are known as radio base stations. The radio base stations transmit and receive radio signals between Optus’s network and a mobile phone user.

12. Mr Chang stated that the radio bases “…will use an antenna to receive and transmit signals within a serving area and will register a Subscriber’s mobile device within that serving area”. He explained that there is constant communication between any device connected to the Optus network and the network itself. This occurs even when a device is in ‘idle mode’, for example not participating in a call. Devices may transmit data to new radio base stations depending on the strength of a signal.

13. Mr Chang detailed the ‘call process’ as follows. (a) The Optus customer dials the required number. (b) The call is sent between the Optus customer’s mobile phone to an available base station. (c) The call is then directed to the Mobile Core Network. (d) The call is then directed to the required number as dialled by the customer. (e) During the call, it is possible for the call to move between different cell-phone towers. An example was when a customer was travelling or driving the ‘call’ will also travel. (f) The call may start at a particular base station and switch through several base stations during the call.

14. Mr Chang opined that it is likely that when a mobile device is connected to a base station, it is likely to be in the general direction from the antenna of the base station.

15. Mr Chang interpreted data from the accused’s mobile phone and cell tower (base station) records. The effect of his evidence was that the accused’s mobile phone was moved through various base stations at the time the alleged offences occurred. This evidence seeks to answer the alibi the accused had indicated an intention to rely upon.

The legislative regime

16. Division 8.3 of the Court Procedures Act applies to criminal proceedings conducted on indictment to which the Supreme Court has jurisdiction: s 77 of the Court Procedures Act. It is useful to set out the following relevant provisions: 78 Mandatory pre-trial disclosure—expert evidence (1) After an indictment is filed in a proceeding, the following pre-trial disclosure is required: (a) the prosecutor must give each accused person written notice in accordance with section 79 about whether or not the prosecution will adduce expert evidence in the proceeding; (b) an accused person must give the prosecution and each co-accused person (if any)— (i) written notice about whether or not the accused person will adduce expert evidence in the proceeding; and (ii) if the accused person receives written notice under this division from the prosecution or a co-accused person about an intention to adduce expert evidence in the proceeding—written notice in reply in accordance with section 79A; (c) if the prosecutor receives written notice under this division from an accused person about an intention to adduce expert evidence in the proceeding—the prosecutor must give each accused person written notice in reply in accordance with section 79B. (2) Pre-trial disclosure in accordance with this section must happen before the date set for the trial in the proceeding and in accordance with a timetable determined by the court. (3) The court may vary the timetable determined under subsection (2) if it considers that it would be in the interests of justice to do so. 79 Prosecution notice—expert evidence (1) For section 78 (1) (a), written notice by a prosecutor in a proceeding must— (a) if the prosecution intends to adduce expert evidence in the proceeding— include the following: (i) a statement that the prosecution intends adducing expert evidence in the proceeding; (ii) a copy of any statement or report relevant to the proceeding that sets out the opinion of a person who the prosecution intends to call as an expert witness in the proceeding; (iii) a copy of any other real evidence that is relevant to expert evidence that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the real evidence, a detailed description of the real evidence; (iv) any chart or explanatory material relating to expert evidence that the prosecution proposes to adduce at the trial; or (b) if the prosecution does not intend adducing expert evidence in the proceeding—a statement that the prosecution does not intend adducing expert evidence in the proceeding. 79C Sanctions for non-compliance with pre-trial disclosure requirements (1) The court may refuse to admit expert evidence sought to be adduced by a party in a proceeding if the party failed to disclose the evidence to the other parties in accordance with this division. (2) The court may refuse to admit evidence from an expert witness sought to be adduced by a party in a proceeding if the party failed to give the other parties a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed under this division. (3) The court may grant an adjournment to a party (the first party) if another party (the second party) seeks to adduce evidence in the proceedings that the second party failed to disclose in accordance with requirements for pre-trial disclosure imposed under this division and that would prejudice the case of the first party. 79D Disclosure requirement is ongoing (1) The obligation to comply with the requirements for pre-trial disclosure in relation to expert evidence under this division applies until— (a) the accused person is convicted or acquitted of the charges in the indictment; or (b) the prosecution is brought to an end. (2) If a party becomes aware of a notifiable development in relation to expert evidence disclosed under this division after the evidence was disclosed the party must notify each other party to the proceeding about the development as soon as practicable. (3) A party may, with the leave of the court, amend notice given by the party under this division if notification about a notifiable development is received from another party that would affect the contents of the party’s notice. (4) A party that amends the party’s notice in accordance with subsection (3) must give the amended notice to each other party to the proceeding. (5) In this section: notifiable development, in relation to expert evidence required to be disclosed under this division in a proceeding, means any information, document, thing or occurrence relevant to— (a) an understanding of the expert evidence; or (b) the reliability of the expert evidence or a person who is proposed to give the evidence in the proceeding; or (c) the use or effect of the expert evidence in a proceeding. 79E Court may waive requirements (1) A court may, by order, waive any of the pre-trial disclosure requirements under this division if the court considers that it would be in the interests of justice to do so. (2) The court may make an order under this section on its own initiative or on the application of the prosecutor or an accused person. (3) An order may be made subject to any condition the court considers appropriate. (4) The court must take into account whether the accused person is represented by a lawyer when considering whether to make an order under this section. (5) The court must give reasons for the making of an order under this section. Consideration

17. The parties adopted that which I observed in DPP v Cross [2024] ACTSC 277 at [70] namely that the following matters are relevant to a consideration of whether pre-trial disclosure obligations ought to be waived in the interests of justice: 1. An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance; 2. The explanation for the late disclosure; 3. Any prejudice that would be caused if the new material was able to be relied upon; 4. Any appropriate remedies, including an adjournment of the trial; and 5. Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.

The accused’s submissions

18. Mr Chen submitted that the chronology in this matter disclosed an egregious failure to comply with the regime set out in division 8.3 where it was demonstrated that the failure resulted from a deliberate decision not to comply.

19. First, Mr Chen submitted that a consideration of the application should necessarily begin with the failure by the prosecution to properly consider the admissibility of Mr Palethorpe’s evidence which was available to them on 18 July 2024. By 11 September 2024 the prosecution was on notice that there was to be a contest about Mr Palethorpe’s status as an expert with respect to interpreting data from the accused’s mobile phone.

20. Secondly, Mr Chen noted that the offer from him to support an extension of the requirement to comply with expert evidence directions was not ever taken up. Instead the prosecution ignored his proposed approach and sought to invoke his offer of support after they had served the expert report upon him.

21. Mr Chen suggested that there being no explanation for why no attempt was made to obtain an expert report before 13 February 2025 and no explanation for why the prosecution did not bring their failure to comply with expert evidence deadlines to the Court’s attention was consistent with other decisions of this court: DPP v Cross [2024] ACTSC 277; DPP v Sullivan (No 3) [2024] ACTSC 390; DPP v Little (a pseudonym) (No 2) [2025] ACTSC 112.

22. Accordingly, Mr Chen suggested that the approach taken in this matter by the Director should be viewed as a systemic issue, or at least the emergence of a systemic issue that the “Court cannot condone”. Mr Chen stressed the importance of complying with directions made by the Court in particular where the subject of the directions has the capacity to effect whether or not a trial goes ahead in circumstances where the Courts resources are finite. Mr Chen argued the Director’s approach was one which treated the need to comply with Court imposed timeframes and the ongoing obligation of disclosure as optional and entirely dependent “on their own schedule in obtaining the evidence”.

23. Next, Mr Chen identified that he did not have any certainty as to the expert report until it was served on him on 9 April 2025. Further he submitted that for him to now seek an adjournment, where the matter had already missed the November 2024 call over and the accused was in custody, would keep the accused in a state of suspense as to the finalisation of this matter where there was no certainty as to a future trial date. Mr Chen also identified that there are unrelated outstanding sentencing proceedings for the accused which were adjourned pending finalisation of this trial.

24. Fourthly, Mr Chen observed that the absence of the expert evidence would not be fatal to prosecution’s case and would not result in “the Court being presented with a misleading picture”. This is because there are “other strands” in the prosecution’s entirely circumstantial case, including visual identification from two complainants, voice recognition from two complainants, evidence linking the car to Mr Cross and alleged admissions made by Mr Cross in recorded phone calls whilst at the Alexander Maconochie Centre.

25. Fifthly, Mr Chen submitted that consideration of the prosecutorial duty to put all relevant evidence before the court is of no significance where applications seeking the waiver of pre-trial disclosure would invariably involve relevant evidence and “the legislative scheme governing pre-trial disclosure necessarily contemplates that probative evidence may be excluded as an ordinary consequence of non-compliance with the regime”.

26. Finally, Mr Chen also contended that the service of the expert evidence eight weeks prior to trial did not amount to “ample opportunity” to seek an expert report. Mr Chen identified the highly technical and specialised nature of the field of expertise. Mr Chen highlighted that he sought clarification of Mr Chang’s evidence which he did not receive until 16 April 2025. The defence were required to file any expert report upon which they sought to rely on 4 December 2024. The engagement of an expert by the defence would have risked the trial date which he submitted was a compelling consideration in this matter. The result of timing of the service of the expert evidence Mr Chen submitted, was effectively, the “extinguishment” of the opportunity to obtain his own report given the circumstances bearing on this trial proceeding.

27. In oral submissions Mr Chen highlighted two further matters.

28. First, that the prosecution did not ever file a questionnaire indicating that evidence with respect to geospatial mapping was outstanding despite filing an updated questionnaire on 25 February 2025.

29. Secondly, Mr Chen argued that highlighting as the prosecutor did, the difficulties which arise in the management of trials including the effect of individual prosecutors taking leave, finite resourcing and voluminous workload only underscored the necessity for the timely disclosure of expert evidence. Those same pressures, Mr Chen pointed out, attend to the work engaged in on the accused’s behalf.

30. Mr Chen accepted that he sought clarification from Mr Cheng about his evidence on 16 April 2025 and noted that he was left to respond to the evidence where his offer to support an extension of the timeframe was ignored. Mr Chen also noted that his communications with the allocated prosecutor, who this application identified as taking leave in the latter part of 2024, also included the supervising prosecutor as well as the generic email address for the Director’s office. The prosecution’s submissions

31. The prosecution characterised the evidence of Mr Chang as “significant” though conceded its exclusion would not be fatal to their case. The expert evidence seeks to demonstrate that on 1 May 2024 at various times around 12:40am the accused’s mobile phone was moving or had begun to move. The prosecution submitted that because the accused has served an alibi notice, namely that he was home asleep at 1am, Mr Chang’s report was of significance. The evidence it was submitted, provides a foundation for an inference that if the accused’s mobile phone was on the move, the accused was with it, thereby undermining the reliability of any evidence called to establish an alibi.

32. The prosecution sought to orient the decision to obtain Mr Chang’s statements in the circumstance where it originally intended to only rely on Mr Palethorpe’s evidence and where the specific prosector with carriage of the matter took leave between 1 November and 15 December 2024 after which the Christmas/New Year shutdown period soon followed. The prosecution submitted that it was significant that the report of Mr Chang was disclosed to Mr Chen on the same day it was received.

33. The prosecution sought to draw some analogy with the outcome in DPP v Morley [2024] ACTSC 124 where the offender was permitted to rely on an expert report disclosed a week before a sentencing hearing where the prosecution was on notice of its production and where the report was “relevant, useful and not significantly prejudicial to the position adopted by the Director, having regard to the manner in which counsel for the offender submitted it should be used”. Respectfully, Morley was of limited assistance considering the circumstances attending to the making of this application.

34. The prosecution further submitted that the prejudice to the accused in this case was “nil”. In support the prosecution pointed to Mr Chen’s engagement with Mr Chang on 16 April 2025 and the clarification provided as a result. Mr Chang’s evidence served on 9 April allowed “ample opportunity” for the accused to obtain his own expert report.

35. The prosecution accepted that an adjournment of the trial was not a suitable remedy given the accused is in custody and the limited trial listings that are likely to be available.

36. The prosecution also submitted that refusing their application to waive pre-trial disclosure obligations would affect their ability to comply with r 29.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT): A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole truth of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

37. Mr Deakes observed that unlike in other matters where pre-trial disclosure was not waived for expert evidence, there is no capacity in this matter to craft directions which could give effect to it.

Determination

Is it in the interests of justice to waive the pre-trial disclosure requirements?

38. For the following reasons, the answer is ‘no’.

An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance

39. There was no contest that if the evidence was accepted, it could rationally affect (directly or indirectly) an assessment of the probability of the existence of a fact in issue, namely whether the accused was at his home, in bed, when the acts occurred and in turn, whether he was the person who used the firearm on 1 May 2024.

40. The characterisation of the evidence as ‘significant’ in those circumstances was appropriate. So too the acceptance, in light of the circumstantial nature of the case, that without it the case against the accused was not ‘doomed to fail’.

41. No obstacle to the admission of the evidence was identified and the expertise of Mr Chang was not challenged. Accordingly, had the prosecution served the evidence within the time frame initially set by the Court, I would not have excluded it.

The explanation for the late disclosure

42. The explanation for the late disclosure was, in effect, prosecutorial ‘oversight’. This explanation is perhaps consistent with what occurred while the prosecution was of the view (rightly or wrongly) that Mr Palethorpe was the extent of the expert evidence upon which they would rely with respect to geospatial mapping, in conjunction with the allocated prosecutor taking leave and the festive season.

43. Mr Chen accurately pointed out that his communication about the position he was taking on the expertise of Mr Palethorpe and his willingness to concede an extension of time, was directed to the allocated prosecutor and their supervisor as well as the generic email address for the Director’s office. Notwithstanding that broad attempt to generate action from the prosecution and the failure of the Director’s office to promptly respond, I am satisfied that the failure could be characterised as ‘oversight’ to a point. That point was the moment the prosecution determined to seek a report from Mr Chang. Thereafter, it was a deliberate decision not to comply.

44. The prosecution determined to seek a report from Mr Chang at the same time as they unequivocally acknowledged that the timeframe for compliance with Court orders had “lapsed”. In those circumstances it could no longer be the case that the necessarily late disclosure of expert evidence and the failure to draw it to the attention of this Court, was an ‘oversight’.

45. There was some reliance placed on Mr Chen’s offer of support for an extension of expert evidence timeframes in December 2024 as guiding the approach taken by the prosecution from February 2025 onwards. Of course, Mr Chen’s offer of support for an extension, whilst influential, was not definitive. Particularly when he did not have absolute confirmation that a report was to be relied upon, having only been advised that it was “anticipated”. It was not until 9 April 2025 with the service of the evidence that reliance on it was confirmed.

46. It was not Mr Chen who determined the timing for pre-trial disclosure, it was the Court. In determining to seek a report from Mr Chang as they did, the prosecution knew that they were in breach of orders already made by this Court. Mr Chen was entitled to place some significance on the requirement for the prosecution to seek and be granted a waiver before the evidence could be relied upon. Indeed, by his reasonable conduct, Mr Chen had done all he could to facilitate the prosecution’s capacity to rely on expert evidence. Consistent with his email on 1 November 2024 and 17 December 2024, Mr Chen made plain his intention to exclude Mr Palethorpe’s evidence in so far as it purported to express an opinion about what the data from the accused’s mobile phone revealed as to his location.

47. The prosecutor resisted a characterisation of the approach to the expert evidence taken in this matter as revealing a “systemic” problem within the Director’s office and reiterated the need for this matter to be determined on its merits. So much may be accepted. I cannot help but observe that Cross, Sullivan and Little, matters which considered the approach that should be taken in circumstances where the prosecution had not complied with the pre-trial disclosure regime were determined in September 2024, December 2024 and March 2025. The effect of the analysis in each instance was to emphasis the ongoing nature of the disclosure requirement under division 8.3 and the need for action immediately upon realisation that waiver or variation was necessary. The outcome in Sullivan and Little, in the face of inaction was to prohibit reliance by the prosecution on expert evidence. The point being that the Court’s analysis in those matters exposed the risk of inaction in circumstances where the need for waiver was certain.

48. Neither the explanation provided by the prosecution, the circumstances revealed by the chronology of communication between the parties, nor the history of the proceedings favour the waiver now sought by the prosecution.

Any prejudice that would be caused if the new material was able to be relied upon

49. There was, I think, an unintended hint of irony in the prosecution’s position that the accused had “ample opportunity” to seek an expert report in reply once served with the statements of Mr Chang on 9 April 2025. In oral submissions the prosecutor submitted that in early January 2025 some inquiries were made by the informant with or about Mr Chang. On 13 February 2025 the prosecutor sent an email to the informant “requesting that he make inquiries to find an expert to interpret the telecommunications data”. Mr Chang’s statements being received on 9 April 2025, securing and preparing his report took at least eight weeks.

50. On 16 April 2025 Mr Chang provided clarification after questions posed by Mr Chen. The effect of which was a period of seven weeks and some days for the accused to obtain his own expert report. I am not satisfied that the accused did in fact have “ample opportunity” to secure and have prepared an expert report of his own. Mr Chang’s report took the prosecution at least eight weeks noting it appeared to have first been raised in early January 2025.

51. Mr Chen did not go so far as to submit that he was unable to identify an expert, and he accepted that he has had the opportunity to seek clarification from Mr Chang. Nonetheless, he maintained that the accused would suffer prejudice if the waiver were granted, pointing in particular to the technical and specialised nature of the expertise involved.

52. The prosecutor highlighted that after the accused received clarification from Mr Chang, he did not move to obtain his own expert report. The inference invited from that submission was, I think, that the accused’s approach ought to be viewed as a concession that Mr Chang’s evidence was not susceptible to “dispute, comment or refinement” by another expert: see Sullivan at [39]. I do not accept that this is an inference that can be drawn. The opinions expressed by Mr Chang especially those presented as a percentage with respect to “distance distribution” appear capable of leaving ground for dispute or at least, commentary. The fact that the accused has not moved to engage an expert in response to Mr Chang’s evidence is not a concession that his opinion is incapable of generating expert evidence in reply.

53. It cannot be ignored that the accused is in custody. This trial, having missed the November 2024 callover, was set down in March 2025. The current state of the listing demands in this Court are such that there is no certainty as to when the matter would be reached. The finalisation of outstanding sentencing proceedings for unrelated charges is pending the outcome of this trial because the prosecution in those proceedings have supported an outcome that would see the accused immediately released from custody. That position, the accused accepted, will be influenced by the outcome of these charges. The finalisation of this trial then has particular significance for the accused and a determination to seek a report in reply would have inevitably risked the trial date in circumstances where the burden was on the prosecution to demonstrate that pre-trial disclosure requirements should be waived.

54. I am satisfied that the approach taken by the prosecution in this matter, effectively extinguished the opportunity for the accused to seek his own expert report in time for the trial and he has suffered prejudice as a result.

Any appropriate remedies, including an adjournment of the trial

55. The prosecutor indicated that an application to adjourn the trial in these circumstances would be unlikely to be opposed.

56. The determination not to contest an application by the accused to adjourn the trial, in these circumstances is no answer to the failure to comply with the obligations created in division 8.3. The entire purpose of the division is to encourage timely identification of reliance by the parties on expert evidence to avoid unnecessary delay. This Court, in discharging its supervisory role under the division, cannot tolerate an approach to non-compliance which anticipates uncontested further delay as the appropriate remedy. Unnecessary delay is the very thing the provision is designed to guard against. The delay that would have attended to this matter had an adjournment been sought and granted was entirely avoidable.

57. An accused should not be faced with the choice to adjourn their trial or to attempt to answer expert evidence noncompliant with the pre-trial disclosure regime. Whether in custody or not, an accused should be entitled to operate on the basis that the prosecution will either comply with Court ordered timelines to facilitate pre-trial disclosure, or act swiftly to draw their non-compliance to the Court’s attention so that further orders might be crafted to avoid unnecessary delay.

58. In this matter the position faced by the accused is made more acute by the prosecution’s knowledge of their non-compliance and their failure to act in the face of it.

59. An adjournment of the trial is not an appropriate remedy in this instance. No other remedy was identified. Whether the exclusion of the evidence would mean the Court would be presented with a misleading picture

60. The prosecution sought to invoke r 29.1 of the Legal Profession (Solicitors) Conduct Rules to strengthen the weight of this consideration in favour of their application.

61. First, I am not persuaded that the exclusion of the evidence will present a ‘misleading’ picture so much as an incomplete one. As both parties accepted the case against the accused is a circumstantial one. There are several ‘strands in the cable’ which will remain notwithstanding the exclusion of Mr Chang’s evidence with respect to the accused’s mobile phone.

62. Of course, the alibi the accused has indicated that he may rely upon could be undermined by evidence which points to his presence outside of his home at the relevant time. The significance of the mobile phone data interpretation from Mr Chang relies on the accused having his mobile phone with him at the time the offences occurred, as opposed to it being in possession of somebody else. It is not evidence that places the accused definitively at the scene. Rather it provides some answer to the anticipated alibi evidence.

63. It is I accept, as the prosecutor submitted, important evidence in the context of the alibi. Of course, this only underscores the risk of inaction when the prospect of non-compliance with the requirements of pre-trial disclosure looms large.

64. As I observed in Little at [72]: The submission advanced by the prosecution as to the significance of the jury hearing directly from the expert, serves to highlight the need for careful compliance with the pre-trial requirements which govern the use of such evidence. The ‘importance’ attached to the evidence by the prosecution speaks to the need to attend to the conditions that will support its admission.

65. In light of the position unequivocally and frankly communicated to the prosecution by Mr Chen in December 2024, the conditions which would have secured the capacity to rely on Mr Chang’s evidence were clearly capable of being met. There remained ‘ample opportunity’ for the prosecution to give effect to the rule they now invoke in support of the waiver sought to remedy their own inaction.

66. It is not for the Court, in the face of the prosecution’s deliberate non-compliance, to bolster their ability to comply with r 29.1 of the Legal Profession (Solicitors) Conduct Rules by waiving pre-trial disclosure obligations.

67. After careful consideration, I have concluded that it is not in the interests of justice to grant the application.

68. Accordingly, I make the following order: (1) The application to waive pre-trial disclosure contained in division 8.3 of the Court Procedures Act is refused. Accordingly, the prosecution cannot adduce the expert evidence of Mr Raymond Chang in the trial.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: P Beohm Date: 11 July 2025