R v Leung; R v Webster - [2022] NSWDC 137 - NSWDC 2022 case summary — Zoe

NSWNSWDC

R v Leung; R v Webster

[2022] NSWDC 137

District Court of NSW|2022-04-14

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-04-14

Catchwords

[2004] NSWCCA 197 R v Spiteri (2004) 61 NSWLR 369
2019/276599 Publication restriction: Nil.

Source

Original judgment source is linked above.

Catchwords

[2004] NSWCCA 197 R v Spiteri (2004) 61 NSWLR 3692019/276599 Publication restriction: Nil.

Judgment (14 paragraphs)

[1]

Background

HIS HONOUR: The accused, Ms Canny Leung and Mr Cameron Webster, have been arraigned on an indictment containing eight counts. That indictment is this: 1. between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, Cameron Webster manufactured an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug; 2. between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, Canny Leung knowingly took part in the manufacture of an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug; 3. In the alternative to Count 2, between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, Canny Leung, believing that a serious indictable offence had been committed, namely, the manufacture of an amount of a prohibited drug, namely, cocaine which was not less than the commercial quantity applicable, and believing that she had information that might be of material assistance in securing the apprehension, prosecution or conviction of the offender for that offence, failed without reasonable excuse to bring that information to the attention of a member of the NSW Police Force; 4. on 4 September 2019, in Birchgrove in the State of New South Wales, Canny Leung and Cameron Webster did supply an amount of a prohibited drug, namely, cocaine being an amount which was not less than the commercial quantity applicable to that prohibited drug; 5. on 4 September 2019, at Birchgrove in the State of New South Wales, Canny Leung and Cameron Webster did supply an amount of a prohibited drug, namely, 3,4-methylenedioxymethylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug; 6. on 4 September 2019, at Birchgrove in the State of New South Wales, Canny Leung and Cameron Webster did supply an amount of a prohibited drug, namely, methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug; 7. on 4 September 2019, at Birchgrove in the State of New South Wales, Canny Leung and Cameron Webster did supply an amount of a prohibited drug, namely, Heroin, being an amount which was not less than the traffickable quantity applicable to that prohibited drug; and 8. on 4 September 2019, at Birchgrove in the State of New South Wales, Cameron Webster did supply of amount of a prohibited drug, namely, gamma butyrolactone being an amount which was not less than the commercial quantity applicable to that prohibited drug.

[2]

Relevant Legislation

To understand the nature of the objections made by the defence, it is necessary to consider certain common law principles, certain legislation, and the orders made by this Court. The relevant legislative provisions are contained in the Criminal Procedure Act 1986, Pt 3, Div 3. The relevant sections are these: "134 Purpose (1) The purpose of this Division is to reduce delays in proceedings on indictment by - (a) requiring certain pre-trial disclosure by the prosecution and the defence, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of pre-trial hearings, pre-trial conferences and further pre-trial disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned. 135 Definitions (1) In this Division - court means the Supreme Court or District Court. pre-trial conference means a conference held under section 140. pre-trial hearing means a hearing held under section 139. (2) In this Division, a reference to the accused person is to be read as including a reference to the Australian legal practitioner representing the accused person. 136 Directions for conduct of proceedings At the first mention of proceedings in the court before which the trial is proposed to be heard, the presiding Judge is to give directions with respect to the future conduct of the trial. … 139 Pre-trial hearings (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order the prosecutor and the accused person to attend one or more pre-trial hearings before the court so long as the time appointed for any such hearing occurs after the indictment has been presented or filed. (2) During a pre-trial hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection - (a) hear and determine an objection to the indictment, (b) order the holding of a pre-trial conference under section 140, (c) determine the timetable for pre-trial disclosure under section 141, (d) give a direction under section 145 (3), (e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial had commenced, (f) hear and determine a submission that the case should not proceed to trial, (g) give a ruling on any question of law that might arise at the trial. (4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court's own initiative. (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the trial Judge in the proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. (6) Except with the leave of the court, a party to proceedings may not raise a matter referred to in subsection (3) (a) or (e) at trial if a pre-trial hearing was held in the proceedings and the matter was not raised at the pre-trial hearing. (7) Leave is not to be granted under subsection (6) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned. … 140 Pre-trial conferences (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order that a pre-trial conference is to be held so long as the time appointed for any such conference occurs after the indictment has been presented or filed. (2) The court may order the holding of a pre-trial conference under this section on application of any party or on the court's own initiative. (3) The court may make such an order only if the accused person will be represented by an Australian legal practitioner at the pre-trial conference. (4) The purposes of the pre-trial conference are as follows - (a) to determine whether the accused person and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial, (b) to identify the key issues in dispute between the accused person and the prosecutor at the trial, if any, (c) to identify any other issues relating to the proceedings against the accused person that require resolution prior to the commencement of the trial, (d) to identify or determine any other matter as directed by the court. (5) The following persons must be present during the pre-trial conference - (a) the prosecutor, (b) the Australian legal practitioner representing the accused person. (6) If the accused person has been charged jointly with any other person with the offence concerned, a joint pre-trial conference may be held in respect of two or more co-accused, but only with the consent of the prosecution and each of the co-accused concerned. (7) A requirement under this section that a person be present for the purposes of a pre-trial conference is taken to be satisfied if the person is present or available by way of an audio visual link or telephone. (8) Within 7 days after the holding of a pre-trial conference - (a) the prosecutor and the Australian legal practitioner who represented the accused person at the pre-trial conference must complete a pre-trial conference form, and (b) the prosecutor must file the pre-trial conference form with the court. (9) The pre-trial conference form - (a) is to indicate the areas of agreement and disagreement between the accused person and the prosecutor regarding the evidence to be admitted at the trial, and (b) is to be signed by the prosecutor and the Australian legal practitioner representing the accused person. (10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at trial if the pre-trial conference form indicates that the parties have agreed that the evidence is not in dispute. (11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave. 141 Mandatory pre-trial disclosure (1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required - (a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142, (b) the accused person is to give notice of the defence response to the prosecution's notice in accordance with section 143, (c) the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144. (2) Pre-trial disclosure required by this section is to take place before the date set for the trial in the proceedings and in accordance with a timetable determined by the court. Note - Practice notes issued by the court will guide determinations of the timetable for pre-trial disclosures and related matters. (3) The court may vary any such timetable if it considers that it would be in the interests of the administration of justice to do so. (4) The regulations may make provision for or with respect to the timetable for pre-trial disclosure. 142 Prosecution's notice (1) For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following - (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial, (c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript, Note - This paragraph does not require the prosecution's notice to contain copies of transcripts of recorded statements (within the meaning of section 289D) unless the prosecutor proposes to adduce such transcripts at the trial. (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the trial, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person, (j) a list identifying - (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness, (l) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person, (m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor. (2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section. (3) In this section, law enforcement officer means a police officer, or an officer of one of the following agencies - (a) the Law Enforcement Conduct Commission, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption. 143 Defence response (1) For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following - (a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial, (b) the nature of the accused person's defence, including particular defences to be relied on, (c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue, (d) points of law which the accused person intends to raise, (e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following - (i) a statement of a witness that the prosecutor proposes to adduce at the trial, (ii) a summary of evidence that the prosecutor proposes to adduce at the trial, (f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given, (g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment), (h) if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely, (i) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (j) notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges, (k) if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording - (i) any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2) (d) relates), and (ii) particulars sufficient to clearly identify the edits that the accused person requests. (2) The notice of the defence response is also to contain such of the following matters (if any) as the court orders - (a) (Repealed) (b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (c) (Repealed) (d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (f) (Repealed) (g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995. 144 Prosecution response to defence response For the purposes of section 141 (1) (c), the notice of the prosecution response to the defence response is to contain the following - (a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, (b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit, (c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit, (d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection, (d1) if the accused person has requested any editing of any audio or visual recording, or the transcript of any audio or visual recording, that the prosecutor intends to adduce at the trial, notice as to - (i) whether the prosecutor disputes any of the requested editing, and (ii) which requested edits are disputed, if any, (e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence, (f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution. … 146 Sanctions for non-compliance with pre-trial disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division. (2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed by or under this Division. (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for pre-trial disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment. (4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent an accused person adducing evidence unless the prosecutor has complied with the requirements for pre-trial disclosure imposed on the prosecution by or under this Division. (5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised). … 147 Disclosure requirements are ongoing (1) The obligation to comply with the requirements for pre-trial disclosure imposed by or under this Division continues until any of the following happens - (a) the accused person is convicted or acquitted of the charges in the indictment, (b) the prosecution is terminated. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable. (3) An accused person may, with the leave of the court, amend the notice of the defence response given under section 143 if any information, document or other thing is obtained from the prosecution after the notice of the defence response was given that would affect the contents of that notice. (4) The accused person must give the amended notice of the defence response to the prosecutor. … 149E Court powers to ensure efficient management and conduct of trial (1) On or after the commencement of the trial in proceedings, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. (2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial."
It is clear from s 134 that the purpose of Pt 3, Div 3, is the reduction of delays in proceedings on indictment in this Court and in the Supreme Court. The division is not concerned primarily with the admission or rejection of evidence, although the rejection of evidence is a possible sanction for non-compliance with the provisions. What the evidence before me does disclose is a significant failure to comply with the orders made by this Court under the provisions of the Criminal Procedure Act 1986.

[3]

Common Law

The duty of disclosure is still governed by the common law. If I may be so bold, I shall quote from the commentary provided in Criminal Practice and Procedure NSW by Messrs Howie & Johnson. The relevant learning is contained in the commentary under s 142: "...the prosecution is under a continuing obligation to make full disclosure to the accused, in a timely manner, of all material known to the prosecutor which can be seen, on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue, whose existence is not apparent from the evidence, the prosecution proposes to use; and/or (c) to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations: para 18 of the Prosecution Guidelines of the Office of Director of Public Prosecutions...cf. Grey v R (2001) 75 ALJR 1708; [2001] HCA 65...; Bailey v Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100... It was held in Grey at [23] that there was no reason why the defence should have to fossick for documents to which they were entitled. In a joint judgment in Mallard v R (2005) 224 CLR 125 at 133 Gummow, Hayne, Callinan and Heydon JJ confirmed that Grey stands as authority for the proposition that the prosecution must at common law disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. The extent of the Crown's duty of disclosure and the consequences of a breach of that duty were considered in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 where Simpson J suggested that there might be a distinction between the duty to provide copies of documents as part of the prosecution brief and a duty to disclose the existence of documents and to make them available for inspection. In R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 the views expressed in R v Reardon (No 2) were further examined. It was held that the prosecution was not required to disclose evidence as to the physical capacity of the accused. Simpson J stated at [25] that: "The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee." …….. Statutory and general law principles governing the prosecution duty of disclosure were considered in Edwards v R [2020] NSWCCA 57 at [53] ‑ [61] where it was said that the duties imposed by ss 141 and 142 of the Criminal Procedure Act 1986 and s 15A of the Director of Public Prosecutions Act 1986 (at [29‑10,267]) were satisfied by a disclosure and fell short of requiring interrogation of a large body of electronic material where the entirety of that material had been disclosed and made available to the defence; it was not for the prosecution, at least in an ordinary case, to anticipate or comment on the ways in which materials disclosed by it might assist the defence."
Clearly the Crown is not required to draw to the attention of the defence material which might assist the defence, even if the Crown suspects some material might assist the defence. However, it must disclose the material. However, in disclosing voluminous material, the Crown, in my view, has an obligation to point out what material it will use. That is the point of s 141(1)(a), and s 142(1)(e). Generally, these disclosures are found in the Crown case statement.

[4]

Curial history

I turn now to consider the orders made by this Court. In reviewing the orders made I have merely consulted the Court's file in the prosecution of Mr Webster, although it is clear that the two matters ran in tandem. Mr Webster was committed for trial by his Honour Magistrate Williams sitting in the Central Local Court on 25 June 2020. The matter was first listed in this Court before Yehia DCJ on 17 August 2020. The Crown was not then ready to arraign the accused. Her Honour noted that the defence objected to the Crown application for an adjournment for the purpose of an indictment being settled. Her Honour directed that the indictment be presented on the occasion the matter was next listed before the Court. Her Honour directed that no further adjournments would be granted for the arraignment. A further order made by her Honour in Mr Webster's case was that a Cellebrite report and any outstanding records be served upon each of the accused by 14 August 2020. The police at the time of the execution of a search warrant on 4 September 2019 had taken the mobile telephones of both Mr Webster and Ms Leung. The matter was then stood over to 4 September 2020.
On that occasion Mr Webster was arraigned before Yehia DCJ as was Ms Leung. The indictment at that time contained counts numbered 1, 3, 4, 5 and 6 against Mr Webster. He entered pleas of not guilty. Ms Leung also entered pleas of not guilty. Her Honour fixed a trial date of 26 July 2021 with an estimate of between two and three weeks. Her Honour fixed a readiness hearing on 4 June 2021. Her Honour made a large number of orders concerning the preparation of the matter for trial. Those orders are these:

Crown to file and serve on the accused notice of the prosecution case in accordance with s 142 of the Criminal Procedure Act, no later than six weeks prior to the readiness hearing;
Crown to file and serve an affidavit by the officer‑in‑charge confirming compliance with his or her duty of disclosure either before or with the s 142 notice;
Defence to file and serve on the Crown no later than three weeks prior to the readiness hearing the defence response in accordance with s 143 of the Criminal Procedure Act;
Crown to file and serve no later than one week prior to the readiness hearing any response to the defence response in accordance with s 144 of the Criminal Procedure Act;
Any tendency or coincidence notice to be relied upon by either party be served no later than six weeks prior to the readiness hearing;
Where the accused is represented the parties are to hold a s 140 pre‑trial conference no later than two weeks prior to the readiness hearing;
Crown to file pre‑trial conference form in compliance with s 140(8) of the Criminal Procedure Act and in any event no later than one week prior to the readiness hearing; and
Statement of agreed facts and key issues statement to be filed no later than one week prior to the readiness hearing.

The matter was mentioned later on the same day before her Honour because it became clear that the dates given were not convenient for counsel. The trial date was changed to 6 September 2021 with the same estimate and the readiness hearing was fixed for 16 July 2021 at 2:00pm. Her Honour noted that the delay in listing the matter for trial with the unavailability of counsel, not because of the unavailability of Court time.
The matter came before her Honour again on 23 June 2021. She confirmed the trial date of 6 September 2021 and the readiness hearing on 16 July 2021 and fixed a call over on 2 September 2021, that is in the week immediately prior to the commencement of the trial.
The matter came before the Chief Judge, Price J on 14 July 2021. His Honour noted that Ms Walsh was briefed for the Crown, Mr Tom Hughes Jnr was briefed for Mr Webster, and I am told that Mr Winston Terracini was then briefed for Ms Leung. His Honour vacated the readiness hearing on 16 July 2021. He confirmed the call over on 2 September 2021. His Honour extended time for counsel to attend a pre-trial conference pursuant to s 40 the Criminal Procedure Act to 5pm on 6 August 2021. His Honour also extended time for the s 143 response to be filed and served by the Crown to 5pm on 30 July 2021. His Honour went on to make these orders:

The Crown is to file and serve on the lawyers for the accused an affidavit by the officer‑in‑charge of the case which confirms compliance by police with its duty of disclosure as set out in s 15A of the Director of Public Prosecutions Act 1986, and any details of any further evidence the police are yet to obtain by 5pm on 23 July 2021;
Direct that any further evidence to be relied upon by the Crown, including expert evidence, be served on the lawyers for the accused by 5pm on 30 July 2021;
Direct that any further evidence to be relied upon by the lawyers for the accused, including expert evidence, be served on the Crown by 5pm on 20 August 2021; and
Direct that if there be any pre-trial argument, the lawyers for the accused are to file and serve their written submissions by 5pm on 23 August 2021. The Crown is to file and serve its written submissions in reply by 5pm on 25 August 2021. Any further written submissions are to be filed and served by 27 August 2021. Direct that counsel agree upon the factS that are not in issue, which can be put before jury by way of an agreed statement pursuant to s 191 of the Evidence Act which is to be filed by 5:00pm on 16 August 2021. His Honour made two other orders which is not necessary for me to recite. His Honour then confirmed the trial date of 6 September.

The pre‑trial callover was conducted by Yehia DCJ on 2 September 2021. Her Honour asked whether the trial was ready to proceed on the following Monday. Her Honour was told that that was uncertain because that there was a no bill application currently being entertained by the Crown. That application had been made by Ms Leung. Her Honour adjourned the callover to the following day, 3 September 2021 at noon. Her Honour also made this direction: "I direct that the Crown serve the Cellebrite reports on the defence by 2pm on 3 September 2021."
On 3 September 2021 her Honour vacated the trial date of 6 September 2021. Her Honour noted that Ms Leung's no bill application had been rejected. Her Honour noted that a Practice Note 22 Form had been signed confirming that there were no pre‑trial issues. Her Honour further noted the trial was vacated as a result of the COVID‑19 lockdown and the suspension of jury trials. Her Honour fixed a new hearing date of 4 April 2022 with an estimate of between seven and ten days. Her Honour fixed a readiness hearing on 11 September 2022.
The matter came before the Chief Judge, Price J, on 7 February 2022. His Honour vacated the readiness hearing on 11 February 2022 and fixed a readiness hearing before himself on 18 February 2022. On 17 February 2022 the Chief Judge vacated the readiness hearing on 18 February but made a large number of orders. They are these:

The matter is listed for pre‑trial call over on 31 March 2022;
Direct that the Crown serve a copy of the s 142 notice on the lawyers for the accused by 5pm on 23 February 2022;
Direct that any further evidence to be relied upon by the Crown be served on the lawyers for the accused by 5pm on 7 March 2022;
Extend the time for counsel to attend a pre‑trial conference pursuant to s 140 of the Criminal Procedure Act to 5.00pm on 9 March 2022;
Extend the time for the s 143 response to be filed and served on the Crown by 5.00pm on 11 March 2022;
Extend the time for the s 144 notice be filed and served on the lawyers for the accused by 5.00pm on 15 March 2022;
Direct that if there is to be any pre‑trial argument, the lawyers for the accused are to file and serve their written submissions by 5.00pm on 21 March 2022. The Crown is to file and serve written submissions in reply by 5.00pm on 23 March 2022. Any further submissions are to be filed and served by 5.00pm on 25 March 2022;
I direct that counsel agree upon the facts that are not in issue, and which can be put before the jury by way of an agreed statement pursuant to s 191 of the Evidence Act, which is to be filed by 5.00pm on 14 March 2022;
I direct that the parties are to comply with pars 16‑32, as applicable, of Practice Note 23 by 5.00pm on 29 March 2022;
Extend the time for the parties to file their statements of key issues to 5.00pm on 29 March 2022;
Direct the parties confirm at the pre‑trial call‑over that the proposed exhibits consented to be tendered have been prepared into a tender bundle with the appropriate number of copies ready to be brought into Court on the trial date;
The jury trial date of 4 April 2022 is confirmed with an estimate of 10 to 15 days.

On 31 March 2022, the matter came before, Conlon ADCJ. That was the pre‑trial call‑over. His Honour noted that it was possible that the parties would agree to trial by judge alone. He was given an estimate of seven days. His Honour enquired as to whether there are any outstanding pre‑trial issues. He noted that the defence objected to a Crown application for a s 89A special caution. It was thought that that pre‑trial matter would last for one hour. His Honour was told that the issues at the trial were possession of prohibited drugs, whether there was a joint criminal enterprise, and whether there was a commercial quantity of a prohibited drug produced at certain premises.
On 4 April, the first day listed for trial, the matter came before Henson ADCJ, who was the list judge. His Honour stood the matter over to Tuesday 5 April 2022 when the trial was listed before me and commenced. The first orders that I made were for trial by judge alone.
One can see that the Court has made every attempt to have all relevant evidence prepared prior to the commencement of the trial, has ordered the production of Cellebrite reports on a number of occasions, and has generally sought to reduce the amount of hearing time, and insisted upon compliance with the statutory provisions, which I quoted towards the commencement of these reasons.

[6]

Exhibit VD4

Exhibit VD4 is a list of text messages, giving the date of the text message, the time that it is made, the sender, the receiver and the message. All told, there are 34 texts. The exhibit is this: Date Time Sender Receiver Message
7.4.19 2.04pm Cameron Webster Canny Leung Ill need some stockings if you can please

       2.05pm   Canny Leung      Cameron Webster  Now?

       2.05pm   Canny Leung      Cameron Webster  Or when I get back?

       2.05pm   Cameron Webster  Canny Leung      When back is ok

       2.05pm   Canny Leung      Cameron Webster  Ok

24.7.19 9.50pm Cameron Webster Canny Leung Aww, prob next Tuesday, I might live with you for a month

       9.57pm   Cameron Webster  Canny Leung      If there's room!

25.7.19 9.40pm Canny Leung Cameron Webster There is plenty!

       9.40pm   Canny Leung      Cameron Webster  Birchy and cruzy will luv to have u here

      9.40pm   Cameron Webster  Canny Leung      I should be getting in Tuesday 7am, but could have to take the flight after. I don't have my set of keys with me, will have to go see Martin to get them from his house. I'll likely bang on the door!

29.7.19 5.25pm Canny Leung Cameron Webster Hahhahaha

      5.25pm   Canny Leung      Cameron Webster  Ok

      5.25pm   Canny Leung      Cameron Webster  I will b up coz I have to go to the shop

      6.51pm   Canny Leung      Cameron Webster  Give me a call or msg me when u arrive

      9.04pm   Canny Leung      Cameron Webster  All good see u tomorrow

      9.04pm   Cameron Webster  Canny Leung      See you about 9am

      9.04pm   Canny Leung      Cameron Webster  Jc will open the door for ya

      9.04pm   Canny Leung      Cameron Webster  I will be at the shop

      9.04pm   Cameron Webster  Canny Leung      Yeh right

      9.04pm   Cameron Webster  Canny Leung      Ok

      9.08pm   Canny Leung      Cameron Webster  Safe flight

30.7.19 Canny Leung Cameron Webster U here yet? 20.04am

      10.06am  Cameron Webster  Canny Leung      Yeh, Jc welcomed me home with breakfast and coffee. Such a good host.

3.8.19 3.29pm Canny Leung Hyeon Joon Choi Can u make sur laundry clean coz they r gonna come over

      3.29pm   Canny Leung      Hyeon Joon Choi  Around 4

      3.30pm   Hyeon Joon Choi  Canny Leung      Ask web

      3.30pm   Hyeon Joon Choi  Canny Leung      I am still 30

      3.42     Canny Leung      Cameron Webster  Can u clean laundry my bro is coming over thanks

      8.25pm   Cameron Webster  Canny Leung      If you're still at Woolworths, can you please get 25g port Royal

      8.25pm   Cameron Webster  Canny Leung      Tobacco

      8.25pm   Cameron Webster  Canny Leung      Or they don't have port, champion ruby. If neither, don't worry

      8.29pm   Canny Leung      Cameron Webster  Oki

[7]

The texts can be conveniently grouped together. Texts 1 to 5 have been referred to as the "stocking texts"; texts 6 to 11 I have described as the "advent 1 texts"; texts 12 to 25 I have described as the "advent 2 texts"; texts 26 to 30 have been described as the "clean laundry texts"; and texts 31 to 34 have been described as the "tobacco texts".
Texts 26 to 29 were disclosed to the parties on 12 July 2021. The way in which they were disclosed is set out in annexure C to the affidavit of Mr Eric Navea, a solicitor employed by the Director of Public Prosecutions, his affidavit being Exhibit VD9. Annexure C contains a covering email sent by Senior Constable Grogin who someone identified merely as Jeff, and is followed by 195 pages. The first page shows that it is a Cellebrite extraction report for an Apple iPhone UFED. I have not searched through that document to find out exactly where the texts 26 to 29 are.
The balance of the texts contained in Exhibit VD4 were disclosed to the defence on 8 March 2022, that is, on the day following the last date fixed by the Chief Judge for the service by the Crown of any additional evidence. The circumstances in which the documents were served are these, according to Mr Navea's affidavit of 11 April 2022, which is Exhibit VD9: "17. On 8 March 2022 I received two USBs hard drive storage devices from Senior Constable Grogin. Each contained the Cellebrite extraction and Cellebrite reader software. This was the first time that the Director of Public Prosecutions had been served with the complete Cellebrite data of each phone. I created copies of each Cellebrite for each party (four USB devices in total). I tested each device and found the Cellebrite reader for each device worked. 18. On 8 March 2022 I personally delivered an envelope containing two USB drives to Legal Aid Haymarket office for the attention of Ms Suzanne Knowles [Mr Webster's solicitor]. I then proceeded directly to the offices of Nyman Gibson Miralis and personally delivered an envelope containing two USB drives for the Attention of Mr Philip Gibson [Ms Leung's solicitor]. At 4.28pm I emailed both Ms Knowles and Mr Gibson as confirmation that I had personally delivered USBs that date. 19. On the evening of 8 March 2022 I reviewed the data on the Cellebrite of the accused's Webster phone. I found sensitive personal information relating to the accused Cameron Webster not relevant to the proceedings. On the morning of 9 March 2022 I sought the return of the USB containing the Cellebrite data for accused's Webster's phone from the office of Nyman Gibson Miralis. I emailed Ms Gibson [sic] advising him of the same, indicating that I would enquire of the Officer in Charge if data could be redacted to protect accused Webster's privacy. In the interim I offered to generate Cellebrite reports of any communications from Webster's phone data at request. 20. On 23 March 2022 I served by way of email an updated index to brief. Annexure L is a copy of the brief index as at 23 March 2022."
Annexure L does disclose the Cellebrite USBs. The problem with the Cellebrite USBs is this, and I take this information from MFI-5 written submissions provided to me by Mr Ramrakha of Counsel who appears for Mr Webster. The submissions contain this: "9. The volume of data from each phone is significant. 10. The data from Mr Webster's phone call includes: a. 6259 call logs; b. 4619 chats; c. 5998 contacts; d. 22777 instant messages; e. 2195 log entries; f. 9907 images; and g. 93 videos. 11. The data from Ms Leung's phone includes: a. 613 calendar entries; b. 995 call logs; c. 1098 chats; d. 3297 contacts; e. 2036 log entries; f. 2790 SMS messages; g. 97570 images; and h. 2846 videos. 12. Unlike item 32 in the brief index, the data on which the Crown now seeks to rely had not been produced in the form of any cellebrite "report" or printed form. Nor was the accused advised of the nature of the evidence."
Item 32 in the brief index is the Cellebrite extraction report and that was disclosed on 12 July 2021. Accordingly, it can be seen that the Crown served the full content of the records of the telephones of both Ms Leung and Mr Webster on 8 March 2022 without drawing any attention to any of the contents of any of those records.
The form in which the Exhibit VD4 currently is, is disclosed in the affidavit of Mr Navea (Exhibit VD9). It contains this: "26. On 6 April 2022 I operated the Cellebrite reader and accessed Cellebrite Data for the phone belonging to Accused Leung. I reviewed communications between Accused Leung and Cameron Webster, Hyeon Joon Choi, Paul [McCormick] and Luke Yeom. I created a table of selected communications between accused Leung, Cameron Webster and John Choi. Annexure P is a copy of the table of selected messages between Canny Leung, Cameron Webster and Hyeon Joon Choi. Annexure Q is a copy of additional messages between Canny Leung and Hyeon Joon Choi regarding the Birchgrove premises."
Annexure P is, in fact, the form of Exhibit VD4. One will note immediately that it was generated on 6 April 2022 when this trial had commenced on 5 April 2022. The generation of that document, which eventually became Exhibit VD4, was the first time when the attention of the lawyers acting for each of the accused was drawn to the messages now relied upon by the Crown. It ought be obvious from what I have said that the intention to rely upon these messages was never disclosed in any Crown Case Statement or Statement of Facts, nor was it referred to in the opening other than there being reference to what I have described as the "clean laundry" texts.
The late service of all this documentation has not, in any way, been adequately explained. True it is that the USB hard drive devices containing the full contents of each phone were only provided to the Director of Public Prosecutions by Senior Constable Grogin on 8 March 2022, the day after all evidence on behalf of the Crown was supposed to have been served upon the defence.
The data on Mr Webster's phone was downloaded by at least September 2021. Mr Ramrakha, in his submissions, referred me to an email by Mr Navea to Mr Lorkin dated 2 September 2021. At one stage Mr Lorkin was a solicitor acting for Mr Webster.
The data on Ms Leung's phone was downloaded by at least July 2021, as is confirmed by item 32 in the Index to the Brief attached to the Prosecution's s 142 notice dated 16 July 2021.
Paragraph 8 of Mr Navea's affidavit of 11 April 2022, Exhibit VD9, confirms that on 2 September 2021 Senior Constable Grogin contacted Mr Navea and advised that a Cellebrite extraction of Mr Webster's phone had been completed. On that day, Mr Navea wrote his letter to Mr Lorkin advising him of the download. I have been told that the reason for the late download of Mr Webster's phone was that he needed his cooperation in providing a password, or code, or the like, so that access could be gained to the telephone. When that was asked for, I do not know. In any event, the Cellebrite extraction had been completed by 2 September 2021, yet there was no service until 8 March 2022, a period of some six months. Why that six months passed has not been adequately explained. However, that is not the only reason for the objection made by the defence.

[8]

The stocking texts

I turn now to consider the various text messages in the blocks I have earlier described. Both of the accused object to what I have referred to as the "stocking texts". The argument that appears to have been proffered by the Crown is that Mr Webster, being male, does not wear stockings. When he asked for stockings to be provided to him by Ms Leung, the purpose must have been for their being used as a sieve to sieve out impurities from the cocaine which had been extracted from paper, and stockings were found in a plastic pail that was found in the laundry of the premises at the of the time execution of the search warrant on 4 September 2019.
There are a number of assumptions in that argument which show that it is quite fallacious. Firstly, there is no description of what the stockings might be. As pointed out by Mr Ramrakha, they are compression stockings that are often used by those undertaking long airplane journeys, and I do note from the evidence thus far that Ms Leung was a cabin crew member and that Mr Webster was soon to undertake an overseas trip, and it may be that, previously, he had undertaken other airplane journeys. The use of compression stockings for those undertaking long airplane trips is well‑known. Such compression stockings are used to try to avert deep venous thromboses which can lead to more serious complications.
There are stockings which are normally worn by women as part of their attire when their lower limbs or parts of them are on public display. There are other sorts of garments which can be described as stockings, and one can see such apparel in Exhibit VD12 and Exhibit VD15.
The next error in the argument proffered by the Crown is that as Mr Webster is male, he would not wear stockings. That might be the case, but it is not a universal norm. It is the result of stereotypification, as has been argued by Mr Boe, an argument which has also been used by Mr Ramrakha. When the issue of stereotypification arose, I asked that some of the film of the execution of search warrant, be replayed. I do know that in the bedroom number 2, at the premises in Water Street, Birchgrove, there was found a card with the name of Mr Webster embossed into it. It is not a credit card but I would describe it as a membership card showing that Mr Webster is a member of an organisation which encompasses many members of part of our community, and supporters of that part of our community.
Some of the apparel that was found in Mr Webster's bedroom appeared to me to be feminine apparel, an observation in which the learned Crown Prosecutor concurred. However, when the issue of stereotypification arose, Mr Ramrakha for the accused tendered a number of photographs downloaded from the phone of Mr Webster. They are Exhibits VD10, VD11 and VD12. In reply, the Crown tendered Exhibit VD13, which is a synopsis of 26 images, each taken on 26 August 2019, of Mr Webster posing for a set of photographs. Exhibit VD10 is one of those. In Exhibit VD13, the same image as in Exhibit VD12 is found blown up as are two other images of Mr Webster. They show him garbed in a certain fashion which it makes clear that he regards his lower limbs as an attractive part of his anatomy.
Exhibit VD11 is not of Mr Webster, as Exhibit VD14 shows. However, it does show an interest by Mr Webster in the lower limb of the male body. Exhibit 12 is a photograph of a male wearing leggings that go, it would appear, all the way from the tips of the toes, right up to the bottom of the buttocks. The image may not be of Mr Webster himself, as the gentleman can be seen to be bearded or having very thick stubble on his face. However, what it does show is another interest in the lower limb of the human male.
The Crown submitted that the legging shown in Exhibits VD12 and VD15 are made of latex. That I do not know. I would have to rely on Madam Crown's experience in that regard. However, they do not appear to me to be made of leather, but again, pointing out something of which I have some knowledge, having been classically educated, that in classical antiquity, the male human form was thought to be the epitome of beauty rather than as currently obtains amongst many members of our society, that the epitome of beauty is the female form. One can see that Mr Webster might have an interest in stockings because it may be part of his sexual interest.
The other problem is that the exact nature of the "stockings" referred to as being used as sieves for the extraction of impurities from cocaine is unknown and is currently unknowable. The pail and its contents have been destroyed. There are photographs of the pail but one cannot discern in them the nature of the stocking or stockings, at all, whether they be pantyhose or individual stockings, and if so how many of them.
If this were a trial with a jury, I would reject the tender of the stocking texts pursuant to s 137 of the Evidence Act because the admission of them into evidence could lead to their being used improperly by the jury following the erroneous line of argument advanced by the Crown. Equally, the accused would be entitled to put into evidence the photographic images which are Exhibits VD10, VD11 and VD12, and they might be used irrationally by a juror or a number of jurors, who might think that they indicate some form of weird behaviour and therefore, argue that Mr Webster was an individual who acted in a strange fashion and therefore might be a person who might commit the crimes alleged. If the matter should be excluded under s 137, if there were a jury trial, I know of no reason why, when the trial is by judge alone, the evidence should be admitted.
Accordingly, for the reasons of the late service of the documentation, the fact that it was never part of the Crown Case Statement, the fact that it was never part of the Crown opening and because the admission of the evidence might be prejudicial to Mr Webster, the tender of those texts against him I rule to be inadmissible pursuant to s 137.
However, that is not the only reason for rejecting the tender. Evidence was given by Dr Coghlan on 7 April. Dr Coghlan is an expert in synthetic organic chemistry. The Crown Prosecutor asked this question of him and he gave this answer, there being no objection to it because at that time neither counsel for either of the accused knew of the intention of the Crown to seek to adduce the stocking texts. The question and answer are these, to be found on p 75 of the transcript: "Q. In paragraph 21, you refer to exhibit A23 being a plastic bucket that contained moist mesh bags and stockings that all contained a black solid. Can you explain that, please, and what they would be used for in that circumstance? A. So ‑ yeah, so what you can use the ‑ so the black mesh and stockings can be used like a filter, so you can either ‑ there's several ways that people can do this; where you can either have material that you want to filter out would be inside the mesh, and the black material is quite classically charcoal, activated carbon, and that's used to remove coloured material from a liquid, and you remove it by filtering. So, the mesh wouldn't have removed the charcoal, but it would remove whatever substance you're trying to filter. Another way, ‑ which is not this, in this case is where the charcoal would actually be inside the mesh, but it would be more like the fine end fish pumps that ‑ the granules ‑ but, as I said, that's not this case, but.."
The following question goes on to refer to the mesh bags and stockings. As I said, that evidence was adduced without objection because neither counsel for the defence knew of the intention to adduce the stocking texts. In that way it is clear to me that the defence has been prejudiced because, no doubt if they knew of the intention to tender the stocking texts objection would have been taken to that form of questioning.
Of course, not only does Mr Webster object to the admission of the stocking texts, but also does Ms Leung. Ms Leung is charged with knowingly taking part in the manufacture of cocaine at the premises in which she was residing at the time of the execution of the search warrant with her "boyfriend" Mr John Choi, who was not present at the time of the execution of the search warrant. As I understand it, it is alleged by the Crown that she knowingly permitted premises in which she resided to be used for the manufacturing of the cocaine by the extraction of it from paper imported with the drug impregnated into it.
If she were providing Mr Webster with material which one might infer from the stocking texts that Mr Webster used in the extraction of the cocaine, then that would be an act of taking part in the manufacture of the prohibited drug. Accordingly, her objection is well‑founded. Because the prejudicial nature of the evidence, if admitted against Mr Webster, it could not be admitted against him in any rational way. The tender of the stocking text against each of the accused is accordingly rejected.

[10]

Advent 2 texts

The real objection taken by Mr Webster is to text 12, in particular to the text that says "I don't have my set of keys with me, will have to go to see Martin to get them from his house." The essence of the objection is that this text is tendered against Mr Webster to show that he had some earlier access to the premises, that he had a set of keys to the premises, so in that he had control over the premises antecedent to his going overseas.
The problem with the admission of the evidence that the Crown seeks to adduce is that it raises questions of duplicity. There is no dispute that from 30 July 2019 up until the execution of the search warrant, on 4 September 2019, Mr Webster was residing in the premises at Birchgrove. There is no dispute that Ms Leung was also residing there during that time and it appears highly likely that Mr Choi was also residing there, after all he was the tenant formally on the lease granted by the landlord. However, only one act of manufacture of a prohibited drug is alleged by the Crown. When I asked the Crown over what period, the Crown replied that the manufacture was "ongoing."
When I come to deal with Exhibit VD6 I will point out that it shows that Mr Webster paid a rental bond to Mr Choi on 6 April 2018, and that there were regular monthly payments of rent during 2018 to Mr Choi by Mr Webster. One might infer that Mr Webster remained living in the premises at Birchgrove until he went overseas on 15 June 2019.
When it came to the attention of the Crown that Mr Webster commenced residing in the premises at Birchgrove in April 2018, the indictment was amended to commence the periods referred to in counts 1, 2 and 3 from 1 January 2019 to 5 April 2018 so that the period pleaded was between 5 April 2018 and 5 September 2019. However, in her written submissions on this issue, the Prosecutor stated in [30] of MFI7 "It is the Crown case that the manufacture occurred between April and September 2019." I suspect April 2019 was selected because of the time of the stocking texts.
However, the problem is this that would mean that the Crown was alleging that between approximately 1 April 2019 until 15 June 2019, Mr Webster was involved in the manufacture of cocaine and that, because he was beyond the seas until 30 July 2019, he returned to manufacture from 30 July 2019 up until the execution of the search warrant on 4 September 2019. That is not one manufacture but two manufactures.
This raises the question of duplicity. One of the first cases referred to me by Mr Boe in this regard is Johnson v Miller (1937) 59 CLR 467. Miller was a police prosecutor in Adelaide. He made a complaint that Johnson, who was a licensee of hotel premises, had, in essence, permitted people to enter and leave his licenced premises when it was unlawful that he do so. According to the headnote, in the course of correspondence between the parties and their solicitors furnishing particulars it appeared that Miller alleged and proposed to prove that about 30 men were seen coming in or going out of the premises between stated times, and that Miller was in a position to give the exact time when each man was seen, but could prove the identity of only four of those men. Later, Miller withdrew the letter giving those particulars as to the 30 men and made a statement that it was an unknown person seen coming out of the premises during the specified hours on the date stated. At the hearing of the complaint in the Magistrate's Court, the complaint was amended to refer to "a certain person" rather than "certain persons". Johnson then contended that Miller should supply the further particulars to show which of the 30 men was the man who emerged from the hotel was the subject of the complaint. Miller refused to do that and the magistrate dismissed the complaint as the complaint was defective in substance.
The judges of the High Court of Australia held that the complaint was rightly dismissed. At p 489, Dixon J said: "Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham [1909] 1 KB 626, the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge."
In the same case, Evatt J said this at p 497: "It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law."
In written submissions in MFI9, Mr Boe and his junior referred me also to Walsh v Tattersall (1996) 188 CLR 177 at p 84 and at p 107, and to S v The Queen (1989) 168 CLR 266 which involved an indictment that included a blatant ambiguity. Gordon and McHugh JJ said, at p 284: "However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict."
The submissions continue thus: "It is not suggested there is duplicity on the face of the indictment. Rather, duplicity or latent ambiguity arises because the way in which the Crown relies on the text message in April and the text message in August by subjecting the accused to the possibility of being convicted of one of a number of distinct and different offences (as explained by Spigelman CJ in R v B (2008) 76 NSWLR 533 at [53]). Alternatively, latent ambiguity arises because the Crown intends to rely on evidence giving rise to more than one criminal act within count 2 (Johnson v Miller (1937) 59 CLR 467). It is the series of alternative paths to conviction that creates a defect."
I agree. The Crown now appears to say that there were, in fact, two episodes of manufacture committed by Mr Webster. One in the period between 1 April 2019 and 14th or 15 June 2019, and then, from 30 July 2019 up until 4 September 2019. Accordingly, there is substance in the objection taken by the accused, Webster, against the admission of the advent 2 texts because the Crown is relying merely on the reference to the set of keys to show some dominion, if I may use that word, of the accused, Webster, over the premises prior to his leaving Australia on 15 June 2019. The tender of the advent 2 texts is accordingly rejected as far as Mr Webster is concerned.

[11]

The cleaning laundry texts

The next set of texts are the clean laundry texts, texts numbered 26 to 30. Again, these texts are capable of a number of different meanings. The Crown submits that the texts can be interpreted to mean that because a visitor was expected to arrive at the property on the afternoon of 3 August 2019, the laundry needed to be cleaned because a chemical extraction process, that is, a manufacture may have taken place earlier than the time of the text messages which commence at 3.29pm.
Exhibit 3 contains a number of tabs. Tab A2 is a sketch plan of the property at 22/2 Water Street, Birchgrove. The upper floor is at street level. The lower level is the level at which there are bedrooms. There is a two-car garage, but it is separate to the two storey residence. When one enters the residence, one enters into the dining room. The first door on the right‑hand side after one enters the residence leads into the laundry. That has a washing machine and a type of sink that one would expect to see in a normal laundry. However, this room also contains a toilet and a wash basin that one would normally expect to find where there is a toilet.
If one does not turn right into the laundry, but next turns right, one enters the kitchen. Between the kitchen area itself and the rest of the upper level of the building is what could be described as a breakfast bar. The rest of that upper level is the living area of the dwelling and there is a balcony which probably overlooks Sydney Harbour. There is, in that section of the living area, a staircase leading down to the bedrooms.
The bedroom 1 has an en suite, bedroom 2, which is generally identified as that occupied by Mr Webster, and bedroom 3, which is described as the spare bedroom. Near to the entrances to bedrooms 2 and 3 is a bathroom which includes a shower, toilet and wash basin. As counsel have submitted, one would expect that if one has guests and is entertaining guests in the living or dining area of the residence, that the guests would probably use the toilet contained in the laundry rather than descending the stairs to visit either the en suite to bedroom 1 or to use the bathroom which essentially must have been that used by Mr Webster when he was an occupant of this dwelling.
The timeframe is also critical. At 3.29pm, Ms Leung asked Mr Choi to make sure that the laundry was clean because visitors were going to come over at around four. That has been interpreted without any objection as being a reference to be 4 o'clock. A minute later, Mr Choi replies, "Asked Web" which I assume is an abbreviation for Mr Webster or a nickname that was used by Mr Choi to refer to Mr Webster. At the same time he sent a message which said "I am still 30", which appears to indicate that he is some 30 minutes away from the residence. At 3.42pm, Ms Leung asked Mr Webster to clean the laundry because her brother was coming over to visit. In other words, the asking of Mr Webster to clean the bathroom for the expected visit of her brother at around 4pm was only 18 minutes prior thereto.
The first four of those texts are tendered against Ms Leung. The fifth text, that at 3.42pm, is tendered against Mr Webster as well, notwithstanding the fact that there is no positive assent by Mr Webster to the request. Again, that request could have been purely because there was a pile of dirty laundry in the laundry awaiting to be processed through the washing machine and/or a dryer. There, may also had've been material stacked on the lavatory seat or in the wash basin. This could be a purely wholly domestic arrangement, because of the real domestic problem of the imminent arrival of a guest and the need to ensure that the place was clean enough for a guest to be entertained in the residence on the upper level.
It may have required Ms Leung to call her brother. However, these texts were only drawn to the attention of Ms Leung after the hearing had commenced, after evidence had been called. I referred to the disclosure of the material yesterday. What I am seeking to do is to point out that the significance of these texts was only drawn to the attention of the defence when the draft of what became Exhibit VD4, was given to counsel for the accused. There was a reference in Madam Crown's opening to the clean laundry texts. The significance of that may have escaped Counsel. Such things can occur. I cannot see, without there being any positive response by Mr Webster, how text 30 can be admitted against him, other than it may have been a request that he might have responded to. He might have been able to respond to it if he were at the residence, but he may not have been. Here the vice is clearly the late drawing of the attention of these texts and their significance to the defence. I shall leave this aside for one moment.
Texts numbered 26 to 29 were disclosed by the Crown on 27 July 2021. However, the significance of them was never drawn to the attention of the defence other than through the Crown's opening and was not referred to in the Crown Case Statements at any time or in any Statement of Facts provided by the Crown to the defence at any time since the commencement of this litigation. However, text 30 was only disclosed with the delivery of the USB sticks on 8 March 2022 and I referred to the volume of that material yesterday.
Again, I point out that the material delivered on 8 March 2022 was beyond the date set by the Chief Judge for the final service of evidence by the Crown. The first reference to them in any discrete form was in the Crown opening. And to permit the texts to be admitted against Ms Leung would only encourage the Crown to continue to be less than diligent in complying with the provisions of Part 3 Division 3 of the Criminal Procedure Act, and this Court's practice notes and the practice of the Court in trying to ensure that cases are disposed of in an efficient and timely manner. For that breach, I reject the admission of the clean laundry texts.
If I be wrong in that regard, then I should say that as the tribunal of fact, that if they were admitted into evidence, I would give them no weight because if the chemical process was being conducted, the idea of being able to clean up within about a quarter of an hour would be almost impossible and the easiest way of ensuring that no one detected that there was a chemical process being undertaken would be to dissuade the visitor from visiting or to meet the visitor at some other convenient place like one of the many delightful coffee shops in the Balmain Peninsula. I add that because I believe that I, as a tribunal of fact, would misuse that evidence if I gave it the sort of weight or construction that the Crown asks me to place upon it.

[13]

Exhibit VD5

I now turn to consider the admission of Exhibit VD5. Exhibit VD5 is Cellebrite Extraction Report from an Apple iPhone. It is accepted that it is a download of searches made by the user of Mr Webster's telephone on 13 August 2019. Exhibit VD-5 contains 26 items. The first item concerned a visit to the New South Wales Government Fair Trading website at 3.42pm on 13 August 2019. That is only included to show the last prior search made by the user of the phone on that date. The last item on Exhibit VD5 is numbered 26 and that shows a search of a completely different item at 11.41pm on 13 August 2019. That appears to be a reference to speed cars, as far as I can work out. The balance of the items are searches conducted between 4.58pm and 5.10pm on 13 August 2019.
Before describing those searches, I should say something about the provenance of the document. This was part of the disclosure made on 8 March 2022 when Mr Navea, on behalf of the DPP, provided USB sticks to lawyers for both the accused. This currently proposed exhibit is only referable to Mr Webster and only Mr Webster has been heard on this issue, as well as the Crown.
However, the form that is currently Exhibit VD5 can be ascertained from Mr Navea's affidavit of 11 April 2022 (Exhibit VD9). Paragraph [23] of this affidavit is this: "On 31 March 2022 I operated the Cellebrite Reader and accessed Cellebrite Data for the phone belonging to accused Webster. I generated a two-page report of web history from accused Webster's phone. Annexure N is a copy of that two page website web search report. On 7 April 2022 I generated an [amended] version of this report which now appears as Annexure R." Annexure R is in fact Exhibit VD5. As I said, it contains 26 items. Annexure N referred to by Mr Navea contains only 17 items. Apparently Annexure N was sent to the legal representatives for each of the accused on 1 April 2022, as deposed to by Mr Navea in [25] of his affidavit. The current form of Exhibit VD5, that is, what is referred to as Annexure R in [23] of Mr Navea's affidavit, was in fact served on the parties on 7 April 2022, the third day of the trial.
I would point out that Annexure N, which was served on 1 April 2022, was served on the Friday prior to the Monday when the trial was due to commence and which in fact commenced on 5 April 2022. Clearly, the service was late, one day late, and the attention of the parties was only drawn to this material in essence on 1 April 2022.
The item 2 on the extraction report Exhibit VD5 refers to a Google search of Recochem. There was also reference in the URL, which I am told means "Uniform Resource Locator", to a browser known as Safari. Item 6 refers to a lacquer and thinner, and item 7 refers to Diggers lacquer and thinner. There are further references to lacquers and thinners in the items listed as items 8 and 9. Item 10 refers to a search of Recochem using DuckDuckGo, which I am told is a search engine.
Items 15, 16 and 17 refer to methyl ethyl ketone. Item 16 refers to solvents, penetrants, and methyl ethyl ketone. Item 17 refers to methyl ethyl ketone. Item 18, again, refers to industrial products/solvents, penetrants, and eventually methyl ethyl ketone. Items 19, 20 and 21 again refer to a search of Recochem using DuckDuckGo, and items 20 and 21 refer to solvents, and in item 21 there is reference to "Sydney Solvents". There were then references to solvent chemical suppliers and reference to Sydney Solvents. That is the last entry, item 25 at 5.10pm.
I know nothing about lacquers or thinners other than that thinners are used to make paint thinner, and lacquer is something that can be applied to cover a painted substance. I do not know whether lacquers are solvents or thinners are solvents, or whether both or neither are solvents. I know nothing about methyl ethyl ketone nor do I know anything about chemicals used as "penetrants".
Although the search started out with reference to Recochem, which I understand to be a chemical supplier, the searches appeared to end up with another supplier called Sydney Solvents.
The evidence is clear that an alcohol isopropanol was used in attempting to extract cocaine from paper which is alleged by the Crown to be an offence committed by the accused. The only thing that links this to Mr Webster is the fact that some of the isopropanol had been supplied or bought from or indirectly purchased from Recochem. Another batch of isopropanol was in fact probably made or manufactured or supplied by Sydney Solvents. Whether it was purchased from Sydney Solvents or through a middleman or middlemen one is completely in the dark.
The only thing that the Crown seeks to prove by the tender of this document is a link between Mr Webster assuming it was he who was using the phone on 13 August 2019 between 3.42pm and 5.10pm, and Recochem and perhaps Sydney Solvents, but there was no suggestion he searched isopropanol, nor was there any suggestion he purchased isopropanol directly from Recochem or Sydney Solvents.Again, the service of this material in the form of Exhibit VD5 was on the third day of the trial. However, the earlier version of it was on the Friday before the trial was due to commence on the following Monday. Quite frankly, I find Exhibit VD5 confusing and something that would need to be commented upon.
The Crown has called an expert chemist, Dr Coghlan, but he has been excused and he has not given any evidence as to what solvents are, whether lacquers are solvents, whether thinners are solvents, whether methyl ethyl ketone is a solvent or not, and as to whether, for example, isopropanol has the same qualities as methyl ethyl ketone or any of the other products referred to in Exhibit VD5.
Section 135 of the Evidence Act provides the Court with a discretion to exclude evidence. The terms of s 135 are these: "The courts may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time"
In my view, as the tribunal of fact this evidence is awfully confusing, may well be prejudicial to Mr Webster, and is causing an undue waste of time for a matter that has minimal probative value. The tender is therefore rejected pursuant to s 135 of the Evidence Act.

R v Leung; R v Webster

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