nor - although the Respondent disputes that he owned either the pistol or the shotgun and asserts that he was not aware of the existence of either pistol or shotgun or of the location of either of them - that the pistol was found in the Respondent's car in the garage and that the shotgun was found under what was said to have been the Respondent's bed.
30 The first group of materials said by the Respondent to have been removed from the premises at 70 Spinnaker Way, Corlette was said to contain names, addresses, contact details and, in at least one instance, the statement of witnesses for the defence, the evidence of which witnesses was said to "(place the Respondent and his) blue heeler dog in Port Stephens at the times (he) was supposedly in Tahmoor". Given that, as I have just noted, the Respondent does not dispute that he was at the Tahmoor property on 15 February 1997, it is clear, so it seems to me, that the evidence of those alleged witnesses could not bear on the firearms charges with which the Respondent stands indicted, a fact to which Moore DCJ, as is apparent, made no reference in the course of his Judgment. At best, as it seems to me, that evidence might be said to bear upon the charge of cultivating prohibited plants and then only if part of the evidence upon which the Crown would seek to rely on the hearing of that charge was evidence that the Respondent had been seen at the premises at Tahmoor at times prior to 15 February 1997 and in places at or near the place or places where the plants were being grown. No attempt appears to have been made by the Respondent on the hearing before Moore DCJ to direct his Honour's attention to the evidence sought to be relied upon by the Crown to establish that charge and still less to indicate to his Honour how the evidence of those witnesses was said to be "critical" to the Respondent's defence to that charge. Finally, it is to be observed that, despite the fact that it is almost four years since the Respondent was committed for trial, he has at no time given notice of, nor sought leave to tender evidence in support of, any alibi based upon what is said to be the evidence of those witnesses (see Criminal Procedure Act 1986 s.48).
31 The second group of materials referred to in the Respondent's Affidavit are said to be statements from the tenants of the Tahmoor property as at the date of the search and seizure, the Respondent's Affidavit containing no indication as to the contents of those statements nor any suggestion that the identity, or whereabouts, in May 2000, of those tenants were not known to the Respondent. In the absence of some indication as to the contents of those statements it is difficult to see how the Respondent would be disadvantaged by the loss of the evidence of the tenants, as it is quite impossible to know whether, and, if so, to what extent, the tenants or any of them would be able to give evidence directed towards any of the three charges upon which the Respondent stands indicted. Further, in the absence of an indication that the identities, and the then current whereabouts, of those tenants was not known to the Respondent, it would be difficult, indeed, to accept that, by reason of what was alleged to have been the taking of those statements, the Respondent had been deprived of any relevant contact details. It seems clear enough that the Respondent was aware of the identity of the tenants of the Tahmoor property as at 15 February 1997 - indeed, if, as he has asserted, he was on the property on that day carrying out a pre-completion inspection of the property, one would have thought that the names of the tenants and the nature of their tenancy or tenancies would have been included in the contract for sale and they would have attorned tenant to the Respondent's wife on completion - as also does it seem clear that the Respondent was able to obtain the alleged statements from those tenants after 15 February 1997.
32 The third group of materials alleged to have been taken from the property at Spinnaker Way, Corlette was said to have been original documentation relating to the lawful possession of $30,000.00 which disappeared during the search at Tahmoor on 15 February 1997. The relevance of that documentation - unless it is said that the presence of such a sum of money at the subject property at the time bore, in some way, upon the charge of cultivating prohibited plants - to any of the three charges upon which the Respondent stands indicted does not appear to have been the subject of any evidence tendered, or any submission advanced, by the Respondent on the hearing before Moore DCJ, nor, as is apparent from what I have recorded above, was the question of the relevance of that material to any of those charges examined or determined by Moore DCJ.
33 The fourth group of materials alleged to have been taken from the property at Spinnaker Way, Corlette is described as "sensitive and privileged correspondence between the (Respondent) and his legal advisers", a description which, if I may say so, I find decidedly curious as what I have earlier (para. 6(above)) recorded would suggest that, at least between 29 August 1997 and the hearing before Moore DCJ, the Respondent did not have legal advisers but acted for himself. But even if it be the fact that at some time the Respondent did have legal advisers, in the absence of evidence to the contrary - and there appears not to have been any such evidence - one would be entitled to think that those advisers would have retained, and would be in a position to make available to the Respondent, the originals of any correspondence from the Respondent to them and copies of any correspondence from them to the Respondent.
34 The fifth and sixth groups of materials are said to be photographs of, and a statement by, the person who, so it would be put on any trial, was the person wrongly identified by various neighbours as having been the Respondent - I assume - although the validity of the assumption may be questionable - that part of the evidence to be relied upon by the Crown on the hearing of the charge of cultivating prohibited plants was evidence by neighbours placing the Respondent on the subject property at or near the place or places where the plants were being grown at various times prior to 15 February 1997. Two things might be noted about these materials, they being, first, that they would not appear to bear upon the firearm charges in respect of which the Respondent stands indicted; and, second, that it appears clear enough (T.10/8/00 pp. 57, 60) that the person referred as the subject of the photographs is the Respondent's father-in-law, a fact which, in my view, would make it improbable in the extreme that the Respondent would not have another photograph or other photographs of him, which photograph or photographs could be used for the purpose of cross-examining any neighbour who would be called on the hearing to give evidence of the type suggested. Despite the matters to which I have just referred, Moore DCJ in paragraph 39 of his Judgment (see para. 19 (above)) wrote (inter alia):
"There is a complete loss of evidence referred to in paragraphs 6(e) and (f)".
35 The seventh of the materials said to have been taken from the property at Spinnaker Way, Corlette is described as "sound recording of threats made by police attending the premises 71 Greenacre Drive, Tahmoor on 15 February 1997, to wit: "Shoot the bastard and plant a gun on him"'. While, if it were to be suggested that, on 15 February 1997 the Respondent had been shot during the course of the search and a weapon had been "planted" on him, the facts, first, that no such suggestion appears at any time to have been made, and, second, that, as I have noted above, the Respondent does not appear to deny that on the occasion of the search the two weapons were found, makes it difficult for me, in the absence of any explanation - for none was offered - by the Respondent to understand what is the relevance of the tape, even if it ever existed.
36 The various matters to which I have referred lead me, as I have earlier noted to conclude that, in uncritically accepting the Respondent's assertion that the materials referred to in paragraph 11 of his Affidavit of 18 May 2000 were critical to his defence of the charges in respect of which he was indicted and that in the circumstances he could not receive a fair trial and in failing to examine the validity of the former assertion Moore DCJ did err in the respects firstly relied upon by the Crown.
37 In seeking to demonstrate that Moore DCJ erred in the second of the respects which I have set out above, the Crown submitted: