Application to discharge jury.
Cases Cited: Crofts v R (1996) 186 CLR 427
[1996] HCA 22
Medich v R (2021) 390 ALR 398
[2021] NSWCCA 36
Miller v R (2015) 252 A Crim R 486
Source
Original judgment source is linked above.
Catchwords
Application to discharge jury.
Cases Cited: Crofts v R (1996) 186 CLR 427[1996] HCA 22
Medich v R (2021) 390 ALR 398[2021] NSWCCA 36
Miller v R (2015) 252 A Crim R 486
Judgment (7 paragraphs)
[1]
JUDGMENT on application brought by the accused campbell for discharge of the jury
This trial commenced on 15 May 2023, and the Crown case is drawing to a close. Given the nature of the proceedings, there has been a large volume of documentary evidence comprising five volumes, contained in Exhibit A in the trial, comprising a total of 2,318 pages.
On Monday 26 June 2023, counsel for Mr Campbell applied for an adjournment for one day. In response to a subpoena served on his behalf on 14 March 2023, the accused had received on Thursday 22 June 2023 a number of documents in response to [5] and [7] of the Schedule to that subpoena. Those paragraphs called for at [5]:-
"a copy of all surveillance reports, electronic surveillance materials, or physical surveillance reports in relation to Rohan Arnold between 1 January 2017 and 16 January 2018, including such report or materials in which Mr Arnold was a target, or otherwise identified in overseas jurisdictions."
At [7]:-
"a copy of all surveillance reports, electronic surveillance materials, or physical surveillance reports between 1 January 2017 and 16 January 2018, relating to such surveillance activities which were undertaken in relation to Operation Amorgos, including any such surveillance, electronic surveillance, or physical surveillance conducted in Thailand."
The documents that were produced concerned tracking and listening devices installed in vehicles operated by Mr Arnold in 2017. The material was said to comprise over 10,000 files, and the accused needed an opportunity to assess the material. The application for an adjournment was not opposed and the matter stood over to today, 27 June.
This morning, the accused Campbell applied to discharge the jury. It was put on his behalf by counsel that the tracking device material created no problem for the accused, however with respect to the listening device material it concerned the period 8 August 2017 to 17 January 2018, and on initial assessment it was impossible to assess how long it would take to assess all of that material given that some of the entries were of short duration but other entries up to half an hour in length.
It was submitted that there had been ongoing attempts to obtain from the Australian Federal Police evidence concerning critical decision making during the investigation concerning incidents of threats to participants in the undercover operation, together with the assessment and attempt to mitigate those threats by the AFP. To that extent, further material had been sought from Federal Agent Millen concerning whether diary notes previously produced by that officer were complete.
[2]
The evidence on the application
Exhibit A was a statement of Federal Agent Anthony Watts dated 26 June 2023. In short, it outlined that agent's assignment to the investigating team and his duties of monitoring the listening device, or devices, relevant to Mr Arnold's vehicle. The statement outlines that he recorded anything that he believed was of value in tracking the vehicle or vehicles, and had been provided with spreadsheets by the officer in charge, Federal Agent Murphy, which he reviewed in its entirety and attested to its accuracy.
Exhibit B was a 19 page document concerning the tracking device, which given the basis of the application is of little relevance.
Exhibit C is a summary of significant dates from the tracking device and surveillance material. In it, some seven entries identified in bold writing, which are already subject to evidence in the trial and therefore are of little moment to the application.
Exhibits D and E comprise some 210 pages of materials concerning the tracking and listening device evidence with many entries being left blank, meaning there was nothing of relevance either observed or overheard.
For example, many of the entries read "vehicle unattended, nil interest." There are, within the document, a number of highlighted entries, and notwithstanding the highlighting, it is difficult to see any relevance of those entries to any issue in this trial.
Exhibit F is an email trail comprising an email from the solicitor for Mr Campbell to the Australian Government Solicitor, outlining deficiencies in the notebook of Federal Agent Millen, and seeking confirmation that there are no additional situation reports to produce in the matter. The email was sent on Friday 23 June 2023 at 5.43pm, in other words, after the close of business, and the response from Mr Thorpe, senior lawyer of the AGS sent on 26 June 2023 at 10.02am, merely confirmed receipt of the email and stated that he was seeking instructions.
Exhibit G is a letter from the solicitor for the Australian Government Solicitor to the criminal registry of the Court responding to the subpoena dated 14 March 2023, setting out that on five previous occasions, documents had been produced.
Exhibit H is a statement of Federal Agent Murphy dated 31 October 2018, concerning her assessment of the listening device recordings in the vehicle operated by Mr Arnold, being registration number CTP09F, and her identification of recordings from 25 October 2017 of relevance to Count 1 in these proceedings. Federal Agent Murphy went on to state that she was able to identify recordings of voices identified as Arnold and Mr Campbell, and selected five audio recorded files of which transcriptions were produced, and those files are now in evidence in the trial as part of Exhibit A, being located at volume 2, page 859 and following to page 888.
Exhibit J, tendered on behalf of the Crown, is a letter from the Commonwealth Director of Public Prosecutions to the accused's solicitors, dated 18 February 2020. Relevantly, it read "In accordance with the prosecution's duty of disclosure, I advise that there exists potentially disclosable material not included in the brief of evidence, as follows:
"Material not contained in brief of evidence held by the Australian Federal Police,
The following items are held by the Australian Federal Police:
• 'Notes held by the AFP in relation to surveillance activities';
• 'Electronic and paper AFP investigation files in relation to PROMIS 6077627';
• 'Copies of any diary entries made by any investigating officer relating to the investigation of the matter';
• 'Four digital recording device worksheets from the creation of first generation copies of records of conversation and interview';
• 'AFP surveillance running sheets, camera car footage and images';
• 'AFP surveillance device warrant and tracking device records'.""
Exhibit K, also tendered by the Crown, was an evidentiary certificate under the Surveillance Devices Act concerning the listening and tracking devices installed in Mr Arnold's vehicles.
[3]
The accused's submissions
Counsel on behalf of Mr Campbell submitted that the problem now confronting the accused in terms of not knowing what was contained in this voluminous listening device material, containing over 10,000 files, was not of his own making. It was submitted that the documents could have been previously provided, and that a fair trial does not involve ambush. It was put on Mr Campbell's behalf that he needed to see the documents and access them, which would take a considerable period of time.
It is further submitted that there have been ongoing attempts to obtain information from the Australian Federal Police, in particular concerning critical decision making during the investigation concerning incidents of threats to participants in the undercover operation, and any attempts by the AFP to mitigate those threats. I interpolate that there has been evidence in the trial from Undercover Officer Ivan concerning that issue.
It was further put that a question arose as to whether there had been full disclosure of the diary notes of Federal Agent Millen, and the question arose as to whether there were any further notes.
Counsel rehearsed his submission that this was not a situation of the defence making, that all subpoenaed documents should be produced, and the Court should be very conscious of the time the co accused has spent in custody on remand over a long period of time. The Court was informed that Mr Campbell has a real interest in prosecuting his defence and providing instructions to his legal team, and that is hardly surprising. Given the resources of the Commonwealth, it was submitted that the documents could have been provided, and the fact that they have not been to date brings the administration of justice into disrepute. Further, that trial by ambush does not amount to a fair trial. Rather, in this trial, the accused needed to see the material outlined in these documents, and to assess them as to whether they can be of advantage in his case.
[4]
The Crown's submissions
The Crown submitted that the accused had been on notice of the material since the beginning of 2019 and at the latest from 18 February 2020, namely, the service of the letter that is Exhibit J in the proceedings, and has had ample opportunity to follow up and assess any of that material if he so wished.
Further, there was no ambush here, the Crown does not rely on any of the materials. The Crown relied on the Court of Appeal decision in Medich v R (2021) 390 ALR 398; [2021] NSWCCA 36, where the principles to be applied are outlined in the judgment of the Bathurst CJ at [82] and following, and in particular, at [86] where his Honour the Chief Justice referred to the summary of principles in Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206.
In relation to the material concerning diary notes of Federal Agent Millen, the Court was informed that that material is referred to in Exhibit J and, therefore, the accused would have been on notice of it since February 2020, notwithstanding that four additional pages, possibly partly redacted, were to be provided, and two situation reports, which were not covered by the subpoena.
[5]
Submissions in reply
Counsel for the accused correctly outlined that there had been a gap in the Crown position regarding disclosure, namely, there have been a number of pre-trial applications including an application for a temporary stay heard by Judge Jeffreys of this Court in 2022. Counsel also outlined the difficulties, which are not unusual for those in custody on remand, that the accused has faced in preparing for trial. And, in particular, in this case, given the large volume of material comprising the brief.
[6]
Determination
In determining the application, I have regarded to the principles set out in the judgment of the Chief Justice in Medich v R [2021] NSWCCA 36, and I note that at [84] his Honour referred to the High Court decision in Crofts v R (1996) 186 CLR 427; [1996] HCA 22 where in the dissenting judgment of Dawson J at 432 his Honour referred to the trial judge's discretion to discharge a jury as a discretion, "which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice." The summary of principles at [86] contain the following:
"(1) In determining whether the jury must be discharged following a wrongful admission of evidence, there is no rigid rule to be applied.
(2) In deciding an application to discharge the jury, key considerations include:
(a) The fairness of the trial,
(b) The nature of the statement said to have given rise to the prejudice, including whether they were such as to have been left vividly etched on the mind of the jury.
(c) The seriousness of the occurrence and the context of the contested issues.
(d) The state at which the mishap occurs.
(e) The deliberateness of the wrongful conduct.
(f) The likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence and, particularly, the difficulty of formulating a direction that does not refer specifically to the evidence, and by doing so, reinforce the prejudice.
(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions.
(4) The test to be applied by Appellate Courts, which is not relevant, and I won't repeat.
(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind, "that the judge will usually have a better appreciation of the significance of the event complained of seen in context that can be discerned from reading transcript."
(6) Nevertheless, the duty of an Appellate Court considering a challenge to the exercise of discretion to refuse a discharge is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind, authorities and citations omitted from that summary." (Authorities and citations omitted).
This application comes at a late stage of this trial when the Crown case is nearing completion, the trial having commenced over a month ago. I'm satisfied that the accused was given notice of the material in the tracking and listening devices from January 2019 and, at the latest, February 2020. I've taken into account that there's no difficulty with the tracking device material, and the relevant listening device material was disclosed by the Crown on 30 January 2019, and has been partly included in Exhibit A Volume 2 from p 859. Going to that material, it is clear that it contains substantially irrelevant conversation between Rohan Arnold and the accused Campbell, largely about family and other business matters. But, within the material, there are references to conversation which could be seen to be relevant to issues in the trial. I refer, particularly, to references at p 870 to "Taking a photo of it," reference on p 871 to "He said three cash, is that it," and the response from Campbell: "Yeah, if they let me do the talking he just he wants to get it off his hands," and a reference at p 872 to Arnold saying: "You go," and Campbell acknowledging in his response "New Zealand". That is the full extent on my view on the evidence of the material the Crown would probably rely on at the conclusion of the trial, if it chose to do so.
I am satisfied that the Crown has complied with its duty of disclosure by disclosing existence of this material not included in the brief in Exhibit J, the letter dated 18 February 2022. I accept the Crown's submission that the accused had ample time to follow up and assess this material pre trial. However, I acknowledge that the accused has endeavoured to do so by issuing a subpoena in March 2023, and its subsequent correspondence relating to the response by the Australian Federal Police to that subpoena. I've also taken into account the difficulties the accused has had, as many accused do, being in custody on remand, and preparing for his trial. Of significance, however, is the fact that the Crown does not rely on the material the subject of this application, and in my view of it, there is a very low likelihood of any of the listening device evidence being in any way of advantage to the accused, given the evidence in Exhibit A at volume 2, p 859 and following, to which I have referred.
I'm further satisfied that, having regard to the evidence in the trial to date, and the nature of this material, no question could arise here of this trial being characterised as unfair. The question of the Australian Federal Police's response to threats to participants in the undercover operation, and attempts to mitigate such threats, has been identified as an issue in the trial, and as I've outlined above, there has been evidence called in relation to that from UCO Ivan, who was cross examined in relation to it. That issue is irrelevant to the listening device material arising from Mr Arnold's vehicle in the period August 2017 to January 2018.
Given the evidence outlined above, no finding could be made that the Crown has failed in its duty of disclosure to the co accused, and I find that any prejudice in the loss of opportunity to the accused to assess the listening device material is really more illusory than real, particularly given that no opportunity was taken for some three years before trial to do so. In my view, there is no prospect of any miscarriage of justice here, and I therefore refuse the application to discharge the jury.
[7]
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Decision last updated: 07 May 2024