R v Nancarrow

Disclosure

The two photographs objected to, which the prosecutor sought to tender in the above exchange, were marked as Ex VD1(a) and (b) on the voir dire. In terms of disclosure, those photographs fell into somewhat different categories.
The first photograph was an enlarged or zoomed-in version of a photograph that had been disclosed and was already in evidence (Ex A, p 23). The failure of disclosure was said to arise from the fact that the digital format in which it was provided to the defence (Portable Document Format or "PDF") was not capable of the kind of magnification used to create the image shown to the accused in Ex VD1(a). In other words, and in practical terms, while the image was disclosed, neither Mr Nancarrow nor his lawyers were able to zoom in on the image to see that, possibly contrary to Mr Nancarrow's version of events, the headlamp was lying on his bed.
The second photograph was a magnified and cropped version of a photograph that had not been physically or electronically provided to the defence.
The Prosecutor submitted that the first image was disclosed, albeit in a format that did not allow for magnification, and that the accused could have obtained the item in a different format had he asked for it. As to the disclosure of the second photograph, the Prosecutor tendered a statement of Senior Constable Drew (Ex VDA) which said, in paragraphs 8 and 9: "Statement Preparation 8. When preparing this statement, I have referred to notes and photographs from the NSWPF Forensic Case File Number 4257454 prepared in relation to this matter. During my examination of this incident I took a number of photographs, some of which have been presented, with captions, as part of this brief of evidence. The balance of all unused photographs and documents relating to this matter have been retained in NSWPF Forensic Case File 4257454 supplied to Detective Senior Constable Teece and are available to be viewed at a mutually agreeable time if required. 9. During my examination I prepared a sketch and took a number of measurements of the house. I also caused Crime Scene Office Atkinson to take photographs and record the scene and prepare a sketch for an Interactive Scene Recording and Presentation System (ISRAPS) DVD. At a later stage I sent the sketch I had drawn to the NSW Police Force Forensic Evidence and Technical Services Imaging Section where a computer aided Drawing (CAD) and ISRAPS were prepared."
The prosecution's disclosure obligations are contained in ss 141 - 142 of the Criminal Procedure Act 1986 (NSW): 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, … 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." [My emphasis]
In Edwards v The Queen [2021] HCA 28; 95 ALJR 808, Edelman and Steward JJ held at [68]-[69] that the disclosure obligations are not satisfied by providing the accused with advice that material existed and was available for inspection: "The respondent's submission was effectively that by informing Mr Edwards of the existence of the Cellebrite download on these occasions it had 'otherwise ... disclosed' a copy of the Cellebrite download. In effect, the respondent's submission in this Court was that the words 'has not otherwise been disclosed to the accused person' in s 142(1)(i) meant that a copy of a 'document' (being a record of information) need not be provided to the accused person so long as the accused person is told of the existence, but not the contents, of the document. This submission is contrary to the text, context, and purpose of s 142(1)(i). As to the text, it would treat disclosure of an electronic record of information stored in a physical form such as a hard drive in a fundamentally different way from any other record of information in physical form such as any other document, summary, exhibit, chart, explanatory material, or expert report. The meaning of 'otherwise ... disclosed' textually connotes a circumstance where disclosure, in the sense of provision of any type of physical document or thing, has occurred otherwise than in the prosecution's notice." [5]
This was not necessarily a majority view. The other members of the Court (Kiefel CJ, Keane and Gleeson JJ) found it unnecessary to determine whether the disclosure obligations had been otherwise fulfilled because the material was not shown to fall within s 142(1)(i), that is material that would "reasonably be regarded as relevant to the prosecution case or the defence case". [6] Even so, their Honours observed that s 142 was "only one of several sources of the prosecutorial duty of disclosure" and confirmed statements made by Leeming JA in the Court of Criminal Appeal concerning "good prosecutorial practice" and the desirability of disclosing material in the Prosecutor's possession.
In the present case, the material in question is plainly relevant to both the prosecution and the defence case. Based on the observations of the High Court in Edwards v The Queen, I was satisfied there was a breach of disclosure obligations with respect to the second photograph. While there was disclosure of the first photograph, the format in which it was disclosed was imperfect. However, the reality is that the defence legal team could have easily obtained (by asking) the relevant photograph in a format capable of closer examination of the items on the bed by zooming in on those items or magnifying the image.
Assuming there was a failure of disclosure, as the voir dire developed, there was plainly no unfairness of a kind that would have justified or necessitated the discharge of the jury.

Unfairness

Generally speaking, a failure of disclosure leads to an objection to the admissibility of evidence rather than an application for discharge of the jury: see, for example, R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227 at [12]-[23] (Harrison J).
However, it is not difficult to imagine a case where a failure to disclose relevant material leads to unfairness requiring a jury to be discharged. In Miller v R [2015] NSWCCA 206, the Court of Criminal Appeal at [126] summarised the principles relating to applications to discharge a jury following an "inadvertent and potentially prejudicial event" at trial, by reference to the decisions of Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; and Maric v The Queen (1978) 20 ALR 513: "1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. 2) In deciding an application to discharge the jury, key considerations include: a) the fairness of the trial: Crofts at 440; b) the nature of the statements 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": Crofts at 441; c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; d) the stage at which the mishap occurs: Crofts at 440; Maric at 635; e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; 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: Crofts at 440-441; Maric at 635. 3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. 4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'. 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, than can be discerned from reading transcript': Crofts at 440-441. 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': Crofts at 441, but rather must apply the broader test stated at (4) above."
See also, for example, Re K (2002) NSWCCA 374 at [9]-[10] (Beazley JA, Sully and Simpson JJ), Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448 at [70] (Whealy J), R v Quami (No 40) [2016] NSWSC 807 at [8] (Hamill J) and R v Azari (No 2) [2017] NSWSC 515 at [22]-[23] (Adams J).
The voir dire and submissions on the discharge application developed organically. Part way through the application the Prosecutor raised the fact that part of the material disclosed well in advance of the trial was an ISRAPs presentation. This is an important evidentiary tool that allows the viewer to roam virtually around a crime scene from various points from which 360 degree photographs are taken. I was told that one of the camera angles in the ISRAPs presentation captured the items on the bed as depicted in the photographs used in the cross-examination that led to the application to discharge the jury. It could be magnified, and a screen shot or still image from the ISRAPs presentation was tendered as Ex VDC.
The application for discharge of the jury became somewhat muted at this point. [7]
The photographs that prompted the application (Ex VD1) look like this:
The magnified image in the ISRAPs (Ex VDC) looks like this:
There is no relevant unfairness in circumstances where a virtually identical image was available to the defence. The headlamp was on the bed and this was clear from the disclosed material in the ISRAPs presentation. The accused's provided his version of events in the face of this material.
Further, while in the heat of battle and in the course of cross-examination, the matter assumed significant importance in the minds of the parties, the Prosecutor could only ever take the matter so far. Mr Nancarrow's evidence was that he could not remember how the headtorch came to be where it is. The jury may find that to be unremarkable in the circumstances. He may have thrown it there as he got up to go to the top of the stairs. Its presence does not disprove the accused's account of where he was seated. Even if it did, or if the jury rejects his account that he did not lay on the bed or move about the room, that may be a matter upon which he was simply mistaken. It does not prove he was lying deliberately about that issue, let alone that the critical features of his account should be rejected.
I was, and remain, firmly of the view that there was no unfairness or prejudice requiring a discharge of the jury.

At a glance

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Judgment (5 paragraphs)

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Cases Cited (9)