Leiper v R

The application before the primary judge

1. In June 2016, the defence applied for an extension of the grant of legal aid for additional preparation time to listen to the CDs. That application was refused on 20 July 2016. By notice of motion dated 31 July 2016, the applicant moved the District Court for a stay. The notice of motion sought a stay in unqualified terms. However, when the motion was heard on 23 February 2017, Mr Walker made it plain that what was sought was something less: "It's not a permanent stay your Honour. There could not possibly be a permanent stay."
2. Counsel's submissions referred to a stay "pending the Crown doing something".
3. The application was adjourned and heard briefly on 13 April 2017 and 10 and 18 August 2017. It was refused by the primary judge on 25 September 2017.
4. This appeal was filed on 5 April 2018, more than 6 months after the application was determined, and less than 4 months before the trial date. The grounds focus upon a distinction between a temporary and a permanent stay: "1. The trial Judge was not asked to consider a permanent stay. 2. The trial Judge carefully considered whether a permanent stay was appropriate. 3. The trial Judge failed to separately consider whether a temporary stay was appropriate."
5. The substantive orders that are sought are vacating the order of the primary judge, and staying the proceedings "until the Crown provides the applicant's legal representatives with the transcripts from the surveillance device material".
6. It is convenient to observe at the outset that the language of "temporary" as opposed to "permanent" stay may be inapt. What was sought was a conditional stay. The condition was that the prosecution be stayed until a transcript of the sound recordings was provided. There was no suggestion (nor could there have been) of the Crown being compelled to transcribe the sound recordings. Thus the period of the stay which was sought turned entirely upon the attitude and resources of the Crown. Indeed, if the Crown formed the view that it would not provide a transcript, it might be permanent.
7. Submissions in this Court were confined in two respects. First, the Crown conceded that there was House v The King error, the primary judge having in substance treated the application as one for a permanent stay. It is not necessary to summarise his Honour's reasons. Secondly, the Crown accepted the formulation of principle by the applicant. No oral submissions as to the applicable legal principles were made at all.

The nature of the material presently disclosed

1. The Crown has confirmed, by an affidavit made by the solicitor with care, control and management of the prosecution, that there are 74 disks relating to listening device product, with each disk containing approximately 5 hours of audio recording, and thus some 370 hours of recording.
2. The Crown has also disclosed 80 pages of handwritten log sheets. Most of these contain a deal of information, including in many cases quotations of speech attributed to the applicant or to his wife next to a particular day and time. By way of example, they include: 1. "I think anyone that knows us knows there is no foul play" - David (3 August at 21:28). 2. "David - "I can't get over the fact it's happened. It's not what I expected. There's a part of me that feels relieved and a part that feels ... not guilty but ..." (4 August at 21:39). 3. "Male: I don't want to consult a lawyer unless we really have to ... why should we consult a lawyer we haven't done anything, if we are open and honest but clearly not ..." (5 August at 19:04). 4. "It's not like I belted her up or anything. Surely there would be bruising or something. The only way they could prove that would be a confession. Pants - tight across abdomen. Imagine if it was because of something we've done - we are human after all." (8 August at 11.29).
3. The logs also contain many references to "Small talk - nil relevant" and the like. Of course, what the investigating officers regarded as relevant might well prove otherwise from the perspective of those acting for the applicant.
4. There are four other matters concerning the sound recordings which may be noted. 1. First, there is no evidence that the applicant, or any of his lawyers, or anyone else assisting with the defence, has listened to any of the sound recordings in any detail. 2. Secondly, the Crown has confirmed that it will not seek to tender any of the sound recordings, and that there is nothing on the recordings which is "incriminatory". The Crown is content to advise the jury of the covert surveillance, and the fact that nothing incriminatory was recorded, which is of itself a matter which may tend to exculpate the applicant. 3. Thirdly, the hearing before the primary judge proceeded on the basis that there would be material in the recordings which was "exculpatory". That was recorded in a finding by the primary judge, and reflected, in part, during an exchange with the Crown: "HIS HONOUR: The Crown acknowledges that there's nothing inculpatory in the recordings in that [three week period]. CROWN PROSCUTOR: Yes. HIS HONOUR: But the question is whether the Crown concedes that there is exculpatory material, denials. CROWN PROSECUTOR: I don't know that I can concede it. I don't doubt there would be, though, your Honour, put it that way." 1. Fourthly, it was conceded by the applicant that, in providing the sound recordings, the Crown had complied with its statutory obligation of disclosure, pursuant to ss 141(1)(a) and 142 of the Criminal Procedure Act 1986 (NSW). That said, it was accepted by the Crown that mere compliance with its statutory obligation was not an answer to the availability of the jurisdiction at common law to stay a prosecution for unfairness.

The parties' submissions

1. The applicant emphasised that the Crown had conceded that there was exculpatory material contained on the sound recordings created by the police and provided only in the form of recordings coupled with the log reports, and that neither relevant agency of the State (the Crown or the Legal Aid Commission) was willing to fund a transcription of those recordings. His submissions recognised that the defence would be able to cross-examine the officer in charge of the investigation, and elicit evidence that of the 370 hours of recordings which had been made and listened to, there was "not a syllable elicited that was inculpatory". They also recognised the concession that the recordings contained exculpatory material. However, the prejudice to the defence focussed upon "the as yet unperformed professional task of appreciating on the part of the defence whether much more can be done than simply point to a lack of inculpation". The evidence did not permit any precision about this, something which was sought to be deployed in support of the appeal: "[I]t is not possible for me sensibly to do anything other than speculate, which would not be useful, about the way in which exculpatory material might be deployed at a trial. That is our very point; there is something which is at the heart of a criminal defence, namely consideration in full of possibly exculpatory material that cannot possibly be performed in the juncture we are stuck in at the moment."
2. The submissions enlisted the disproportionality in resources that gave rise to this application. On the one hand, it was accepted that it was appropriate to deploy significant resources to install and (especially) monitor the listening devices within the investigation and prosecution. On the other hand, emphasis was given to the inappropriateness of the defence being denied resources to examine that material. The submission was succinctly captured thus: "The Crown in its prosecuting guise has properly made it available by way of disclosure, not only inculpatory but also exculpatory. And now it is said that it is money, that is the same social resource that enabled all of those steps to be taken, it is money that prevents it being usable in the hands of the defence, even allowing for the fact it is unlikely that the defence will be performing that work at an hourly rate that would pass muster in a McDonalds."
3. The Crown's response was twofold. As a preliminary submission, it said that the only basis for the application was that the transcripts were necessary to meet the Crown's reliance on statements made in the absence of a caution to the police who first responded to the triple-0 call and the demeanour exhibited by the applicant when he made those statements. The Crown submitted that the first step was to request a ruling on the admissibility on that part of the Crown case, which was placed in evidence in this Court in opposition to the grant of leave, and the Crown went so far as to say that there was "at the very least an arguable case for the exclusion of that evidence". Hence it submitted that leave should be refused because the application was premature.
4. The Crown also submitted that defence counsel would be able to cross-examine the officer in charge to confirm that there was nothing inculpatory in all of the recordings which had been made, and that the applicant was well placed, with the assistance of the police logs, to listen to and identify what might be of importance. The Crown submitted that the touchstone of the test was fairness, that fairness needed to have regard both to the accused and also to the community in the body of the Crown, and that a trial was not unfair merely because of an inability to lead every single possible piece of exculpatory evidence.

A further vacation of the hearing

1. The applicant properly and candidly acknowledged that a consideration of great weight for the question of leave was the delay to the trial process. The Crown likewise drew attention to the consequences that acceding to the appeal would have for the hearing.
2. It is necessary to summarise the procedural history of the prosecution.
3. The applicant was charged on 18 February 2014.
4. In July 2014, the trial was first set down for hearing, on 8 December 2014. That hearing was vacated because of the illness of the applicant.
5. The adjourned date, which was in the first week of February 2016, was vacated following the provision of a summary of the listening device material in the second half of January 2016, on the basis that the telephone intercept and listening device material held by police had only recently been disclosed.
6. In August 2016, the matter was again listed for trial commencing on 25 May 2017. That seems to have occurred when Legal Aid had refused an extension to permit the sound recordings to be listened to, and the Crown had declined to provide any further transcripts.
7. At some stage in early 2017, perhaps at or shortly after the hearing on 23 February 2017, the 25 May hearing date was once again vacated.
8. On 18 August 2017 the case was listed for trial commencing 23 July 2018.
9. The solicitor which carriage of the matter for the Crown has given evidence of his belief that if the Crown were required to transcribe the entirety of the listening device audio recordings, it would be more likely than not that the transcript would not be completed prior to the trial date of 23 July 2018. That is not the end of the matter. Even if the entirety of the transcript could be provided before 23 July, it would be necessary for the defence to review the transcript, and, in particular, listen to at least some of the sound recordings following that review in order to determine how (if at all) to deploy it.
10. An example of the need to listen to the sound recording, rather than merely to read the transcript, in order to evaluate its utility for the defence, appears on the only two pages of transcript which is in evidence on this application. The transcript records the applicant's wife asking whether he was "going to get all violently crappy on me are you" and then records her laughing and saying "I know I was having a joke on you", in response to which the applicant is recorded as saying "I may scream at you but I wouldn't … nor would ever kill a child" [sic]. It seems likely that the applicant's wife was not speaking seriously, but there is no way of knowing without listening to the recording. There is certainly no way of determining the tone of the applicant's response without listening to the recording. More generally, there is no way of assessing the impact upon a jury of any part of the recordings without listening to that part of the recordings.
11. Hence, the practical consequence of granting leave and allowing the appeal is, in all likelihood, that the trial will need to be vacated yet again.

The Crown's preliminary submission

1. We do not accept the preliminary submission advanced by the Crown in opposition to the grant of leave, which was based on the exclusion of the evidence of two police witnesses.
2. There are a number of flaws with this submission. Although the Crown accepted there was a reasonably arguable basis upon which to exclude this evidence, there was no undertaking not to seek to adduce it, and nothing to suggest that when and if any such application was made, it would not be opposed by the Crown.
3. We do not accept that it is an answer to the grant of leave to bring an interlocutory appeal from a ruling made months in advance of a trial for the Crown to invite objection to be taken to part of the Crown case immediately prior to the empanelling of the jury, such that if the objection is successful, this issue will fall away. If the fate of the interlocutory ruling is indeed entangled with the admissibility of the two police statements, then the obvious course was for the admissibility of those statements to have been determined at the same time as the application for a stay. That did not occur.
4. Further, given the years that have passed to date, the possibility of a further application for a stay, to be made immediately before the jury is empanelled, in the event that the police statements are not excluded, with the concomitant prospect of an urgent appeal to this Court by the applicant or the Crown, is not to be encouraged. If there is a basis for the exceptional remedy of a stay (whether permanent or temporary), then the application should be made well in advance of the trial, not immediately before a jury is empanelled.
5. Finally, even if the evidence from the police is excluded, the applicant may still wish to adduce evidence in the form of the sound recordings of what he said in the privacy of his home concerning the death of his daughter. The potential value of what is sought to be adduced cannot at this stage be confined to rebutting the evidence from the responding police officers.

Disposition

1. No separate submissions were made in relation to extension of time, as opposed to the grant of leave, and it is not clear from the materials whether there has been the requisite extension of time required by r 5B of the Criminal Appeal Rules, which requires a notice to be given within 14 days of the date of the judgment or order or within such extended time as may be allowed. Accordingly, we proceed directly to the question of leave.
2. The likelihood that allowing the appeal will lead to the vacation of the trial is a powerful factor telling against a grant of leave. The death occurred almost 7 years ago, and the trial has already been vacated three times. However, it is also necessary to consider the strength of the case sought to be advanced if leave be granted.
3. The parties accepted the applicability of what was said by Bathurst CJ, with whom Bellew J agreed, in R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128]: "The question of whether a temporary stay should be imposed arises if the court is of the view that it is inappropriate to grant a permanent stay but, notwithstanding, some relief is necessary to ensure a fair trial."
4. The conceded error of principle favours the grant of leave. However, it is necessary to consider whether, upon the re-exercise of the discretion to grant a conditional stay, any orders are likely to be made. That in turn requires an assessment of the fairness of the applicant's trial if no orders are made. We bear in mind the following matters.
5. First, the application has proceeded on the basis that the applicant will be entitled to the benefit of evidence that there is nothing inculpatory in some three weeks of covertly recorded material from a highly distressing time in his life.
6. Secondly, the application has also proceeded on the basis that there is exculpatory material in the sound recordings. There is no evidence whatsoever as to the nature or quality of such "exculpatory material", save for what might be inferred from the recording logs. There is also a measure of imprecision in describing material as "exculpatory". A statement by the applicant made to his wife, or to a friend or acquaintance, which is consistent with his innocence is, in a sense, exculpatory. Its admissibility may depend upon the way the Crown case is advanced. And its value will also turn on the way the Crown case is advanced. We acknowledge the force of the applicant's submission that it is quite hypothetical to speculate about what may be found on the recordings and how it may be deployed, but we do not accept that one can thereby overcome the basic question of onus. It is for the applicant to demonstrate that a conditional stay is necessary in order to prevent unfairness. The burden of doing so is less than is required for a permanent stay, but it remains a heavy one.
7. Thirdly, the applicant has had access to the entirety of the sound recordings for more than two years. He has known since his stay application was refused last September that, subject to this appeal, the trial would be proceeding in July without the Crown being required to provide transcripts of the sound recordings. He is at liberty. It is no doubt an unpleasant and distressing task, but there is no evidence to suggest that he has been prevented from listening to extracts from the sound recordings, having been advised by his lawyers as to the things to listen for, so as to assist them with a more focussed review. Even if he (or some friend or supporter) listened to the recordings with a view to identifying only portions which touched upon the death of his daughter, that would very substantially reduce the quantity of recordings which are apt to be of greatest significance in evidence.
8. True it is that the log sheets, which comprise some 80 handwritten pages, were prepared by a number of hands, and by officers whose primary concern was to identify inculpatory material, but nonetheless we see no reason to conclude that they would not materially assist in identifying the portions of the sound recordings most likely to be of assistance. And it is to be recalled that the applicant may, with the help of the log sheets, be able to refresh his memory as to when he might have made statements that might assist him, or, alternatively, the persons in conversations with whom he might have made statements which might be relevant to his defence.
9. Fourthly, it is to be appreciated that despite the form of the motion, this is not a binary question of whether or not some document should be disclosed (such as a piece of undisclosed but highly sensitive criminal intelligence), lest there be an unfair trial. This is an application where what is sought is a stay so that material which has already been disclosed (by way of sound recording and also log sheets) may be the subject of further disclosure in a different form, namely, transcripts, so as to make conducting the defence less laborious. The question is one of degree.
10. Bearing in mind all those matters, we are far from persuaded that the applicant has made out a strong basis for the order of a conditional stay. To the contrary, we consider that the case is, at best, one that is weak.
11. It is not necessary for present purposes to go further than indicated above. The practical likelihood (if indeed it falls short of a certainty) of a fourth adjournment of this already long-delayed trial, coupled with the weakness of the prospect of obtaining any substantive relief mean that this is not a case for the grant of leave. Leave to appeal is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2019