[2008] NSWCCA 209
R v Rice (No 4) [2014] NSWSC 1525
R v Rogerson
Source
Original judgment source is linked above.
Catchwords
[2008] NSWCCA 209
R v Rice (No 4) [2014] NSWSC 1525
R v Rogerson
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE (REVISED)
The accused in this matter has pleaded not guilty to an indictment alleging that on 13 April 2019, at Surfside in the State of New South Wales, he murdered Andrew Peter Drake (the deceased). His trial is listed to commence before the Court sitting in Queanbeyan on 1 February 2021 with an estimate of three to four weeks.
In short, it is the Crown case that on the evening of Saturday 13 April 2019, the accused and his father, David Sharpe, were drinking and listening to music at their home in Surfside. The deceased and his sister, Penny Drake, were at their parents' house at the time. That house was adjacent to that of the accused and his father.
When the deceased and his sister were having dinner they could hear music playing in the accused's residence, and at about 11pm they went over there to socialise. It is alleged that during that evening the deceased was stabbed to death by the accused. There is no dispute that the stab wounds inflicted by the accused caused the deceased's death. The sole issue at the trial will be whether or not the accused, in acting as he did, was doing so either in self-defence, or in the defence of another person, namely, his father.
The matter has been before me on a number of occasions for the purposes of management of the trial, most recently on 10 December 2020 for the determination of an application made by the accused to exclude certain evidence upon which the Crown sought to rely. [1]
The matter has come before me again today as a consequence of the filing of a notice of motion by the accused seeking certain orders in relation to evidence sought to be relied upon by the Crown. Although the motion, as drafted, seeks an order vacating the trial date, what is in fact sought by the accused is an order excluding the opinions of Detective Moon which are contained in a report served on the accused's solicitor on 6 January 2021. In the event that I conclude that the evidence should be admitted, it is the accused's application that the trial date be vacated. The motion was supported by an affidavit of the accused's solicitor, Jennifer Chalker, affirmed on 20 January 2021, which was read without objection.
When I was made aware of the filing of the motion, and of the circumstances which had brought it about, I directed (inter alia) that the Crown file an affidavit explaining, in full, the circumstances leading to the delay in the preparation and service of Detective Moon's report. That order was purportedly complied with by the filing of an affidavit of Alistair Tonks, solicitor, sworn on 20 January 2021 which was also read without objection. I say "purportedly" because, as will become apparent, the affidavit falls well short of providing any proper explanation for such circumstances at all.
The background to the present application may be summarised as follows.
The accused was detained by police in the early hours of 14 April 2019 although he was not charged and taken into custody for some weeks after that. On the morning of 14 April 2019 Detective Moon, who is attached to the Wollongong crime scene section of the Forensic Evidence and Technical Services Command, attended the scene of the alleged murder. He did so, as he has described it, for the "purpose of facilitating and coordinating the forensic response in relation to the scene examination connected to the death of [the deceased]". It was his responsibility to conduct forensic examinations at the scene, and to conduct subsequent examinations and comparisons of exhibits collected from the scene and surrounding areas. Significantly for present purposes, Detective Moon's responsibilities included examining and recording bloodstain patterns with a view to analysing them. Detective Moon has explained that analysis of bloodstain patterns involves examining the location, size, shape and distribution of bloodstains and bloodstain patterns by reference to the sciences of physics, mathematics and biology, so as to provide information on the relevant event, or a sequence of events, that resulted in deposition of the bloodstains or bloodstain patterns.
Detective Moon collected a number of blood samples when he attended the scene on 14 April 2019. He also seized various exhibits which were later sent to what is described in his statement as "FASS", an abbreviation for the Forensic and Analytical Science Service. It would appear that those exhibits were forwarded within a short period of being collected on 14 April 2019.
The evidence does not establish with any real precision what happened in the months immediately following Detective Moon's attendance at the scene. However, it is apparent on the evidence that the finalisation of his report, and the finalisation of his opinions as to blood patterns, was dependent upon the receipt of a certificate of DNA analysis. An initial request was made for that certificate on 27 February 2020. Why it was that such request was not made until 10 months after the relevant samples were taken is not explained on the evidence.
On 20 April 2020, one year after Detective Moon had attended the scene, an email was forwarded from the office of the Director of Public Prosecutions (DPP) to a Detective Gillett requesting an update as to the progress of Detective Moon's report. Detective Gillett informed the DPP that he was still awaiting the certificate which was necessary for the report's completion. Two days later the DPP received an email from Detective Gillett containing what was described in the affidavit before me as a "further update about the progress of DSS Moon's statement". Exactly what that further update revealed is not disclosed in the affidavit, although I infer that Detective Gillett indicated that he was still waiting for the certificate.
In circumstances where the DPP was given that indication by Detective Gillett, and in circumstances where it must have been obvious that the issue of the certificate was pivotal to the finalisation of Detective Moon's report, no further inquiry was made about the progress of the report until 8 September 2020, some four months later. On that day, the DPP was advised that the certificate had been received that morning. There is no proper explanation as to why four months was allowed to elapse before any further inquiry was made with a view to having the certificate finalised.
On 14 September 2020, the DPP received an email from Detective Robertson, the officer in charge of the investigation, advising that Detective Moon's report "would be served on the defence the following week". Despite that unequivocal statement, the report was not served. Why it was not served is entirely unexplained on the evidence. What is worse, is that in circumstances where the DPP had been advised in such terms, it was not until 8 December 2020, almost three months later, that a further inquiry was made of Detective Robertson by the DPP as to the whereabouts of Detective Moon's report. Once again, the affidavit filed by the Crown is entirely bereft of any explanation for that delay. It beggars belief that in circumstances where the DPP was informed on 14 September 2020 that the report would be served the following week, three months elapsed before any further inquiry was made. It must have been, or at least it ought to have been, apparent, within a short time after receiving Detective Robertson's email of 14 September 2020, that what he had told the DPP about the report being served the following week had not occurred.
When Detective Robertson was asked by the DPP on 8 December 2020 for an update about the progress of Detective Moon's report, he advised that he had not yet received it. That much was obvious. Such a response ought to have prompted an urgent inquiry by the DPP as to why that was the case, given that Detective Robertson had unequivocally stated three months earlier that it would be served within a week. There is no evidence that any such enquiry was made. I infer that it was not. There is no evidence which explains why that is so.
The long-awaited report of Detective Moon was finally provided to those acting for the accused, and to the Crown, on 6 January 2021, almost four months after Detective Robertson had said that it would be served within a week, and approximately one month after the most recent enquiry by the DPP. What occurred, if anything, between 8 December 2020 (when Detective Robertson was asked for an update) and 6 January 2021 (when the report was finally provided) is, yet again, completely unexplained on the evidence.
The report did not come to the attention of counsel for the accused until 13 January 2021 when he returned from leave. Counsel immediately contacted my Associate and foreshadowed that there was a likelihood that issues would arise as a consequence of the late service of the report. It is in those circumstances that the motion has come before me this morning.
The report of Detective Moon is 80 pages in length. It annexes a total of 174 colour images of the scene of the murder. It must be acknowledged that in light of what I have been told by counsel for the accused as to the nature of the issue in the trial, some aspects of the report are uncontroversial. What is specifically objected to are those paragraphs of the report in which Detective Moon expresses an expert opinion as to blood spatter or blood patterns. Those opinions are contained in paragraphs 15.2; 19.2; 19.3; 62.3.1; 62.5.1; 62.6; 72.3; 72.4 and 72.5.
In addition to the chronology of events that I have set out, it should be noted that the accused was arraigned in this Court on 5 June 2020, shortly after which a trial date was set. Since that time, the matter has come before me for the purposes of managing the trial, and determining pre-trial issues. Despite the matter being before me on numerous occasions, at no time was the issue of Detective Moon's outstanding report raised. I do not, in any way, suggest that that was a deliberate decision made on the part of the Crown, or on the part of counsel for the accused, in an effort to extract some tactical advantage. I accept, based on what counsel have told me this morning, that the significance of the report was not fully appreciated, either by the Crown or by those acting for the accused, until such time as the report was actually forthcoming. That, of course, does nothing other than highlight the unacceptability of its late service.
On 20 January 2021 the DPP contacted Detective Moon to ascertain why the service of the report had been delayed. A file note which is exhibit F to the affidavit sets out a précis of that conversation:
Call to G Moon.
Explained that defence have filed a NOM to vacate the trial date based on late service of his report. Explained that I am currently preparing an affidavit outlining the reasons for the delay and asked him to explain why there was such a delay from his end.
G Moon advised that the initial delay was due to an outstanding FASS report. He said that the FASS report was received in August. He then went on leave in September and part of October. When he came back from leave he was tasked with completing coronial briefs from the bushfires last year. He then went on leave again in November. He said that in short, he 'miscalculated' the time he needed to finish off his report.
He confirmed that he is available to give evidence, if required, at the hearing on Thursday.
The affidavit of Ms Chalker establishes that once counsel for the accused had returned from leave, she wasted no time speaking to him about the report and, in particular, about its ramifications on the preparation and conduct of the accused's defence. On 15 January 2021, two days after counsel had returned from leave and had had an opportunity to look at the report, Ms Chalker began making enquiries about the availability of a suitably qualified expert who could be retained to assist the accused in preparing a report in response. Enquiries were made with an organisation called Independent Forensic Services, however that business was closed and will not resume operations following the holiday period until 25 January 2021. An inquiry was also made at Unisearch Limited, a representative of which advised Ms Chalker that it would take four to six weeks to prepare a report in reply. Ms Chalker also approached the Victorian Institute of Forensic Medicine but at the time of affirming her affidavit there had been no response to that query. On the hearing of the motion, counsel updated the Court in relation to these efforts by indicating that Unisearch Limited had advised him that no expert was available. The representative of another organisation which was approached indicated that no report could be prepared until March this year at the earliest.
Ms Chalker also pointed out, significantly, that because this matter is legally aided, it would be necessary to obtain an extension of the present grant of aid before any expert could be formally retained. Although Ms Chalker has taken steps in an effort to ensure that any application to extend the grant of aid will be dealt with urgently, her uncontested evidence is that no extension can even be sought until such time as the proposed expert has provided an estimate of the costs involved in preparing a report.
In the event that this trial is vacated, the Queanbeyan Court could not accommodate it again until about the middle of this year at the earliest. Prior to the commencement of the hearing this morning, the Crown forwarded an email to my Associate indicating that a courtroom would be available in Nowra prior to the middle of the year. Whilst I appreciate the Crown's assistance in that respect, I am compelled to point out the obvious: namely, that the availability of a courtroom is only one component of a trial. Given the commitments of Judges of this Court, including myself, and in light of my discussions with the list Judge yesterday, it is highly unlikely that any Judge of the Court would be available to preside at the accused's trial until the second half of this year. The accused has already been in custody for a period of more than 18 months.
As I observed at the outset of this judgment, the revised position of counsel for the accused, if I may call it that, was that the opinions of Detective Moon should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) ("the Act"). Both parties accepted that the scope of that section encompassed circumstances of a kind which are presently before the Court. I have previously observed that procedural prejudice of a kind which can arise in circumstances such as this falls within the prejudice contemplated by s 137. [2] In reaching those particular decisions, I made reference to the judgment of, and the approach taken by, the Court of Criminal Appeal in Haoui v R. [3]
In developing his submissions in support of the exclusion of the opinions of Detective Moon, counsel for the accused accepted that, prima facie, the probative value of the evidence was high. However, he submitted that in all of the circumstances s 137 of the Act was engaged because of the danger of unfair prejudice to the accused in the event that the evidence were admitted. Counsel submitted that the danger of such prejudice manifested itself in a number of ways.
Firstly, he pointed out that the effect of the opinions expressed by Detective Moon were contrary to his instructions because they suggested that the deceased was wounded first. Counsel emphasised that such opinions referred to the relevant sequence of events, as well as the issue of the precise location within the accused's premises at which the fatal wound(s) to the deceased had been inflicted. In circumstances where such the opinions of Detective Moon were contrary to his instructions, counsel pointed to the obvious difficulty of cross-examining Detective Moon if the Crown was permitted to rely on his evidence. Counsel also alluded to the fundamental fact that it would be impossible to engage an expert, confer with him or her, and have that expert provide a report in reply, between now and the time that the trial is due to commence. It was submitted that in those circumstances if the opinions of Detective Moon were admitted, there was a clear danger of unfair prejudice to the accused.
The Crown, with what I might say was commendable candour, accepted unreservedly the significantly prejudice which would flow to the accused in the event that this evidence was admitted. The Crown also appeared to accept that there was little or no evidence satisfactorily explaining the delay in the service of the report. However, the Crown highlighted what was submitted to be the significant probative value of the evidence.
Section 137 of the Act is in the following terms:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the Court must refuse to admit evidence adduced by the Prosecutor if its probative is outweighed by the danger of unfair prejudice to the defendant.
A number of observations should be made about that section.
Firstly, in the event that the Court comes to the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, the section mandates the exclusion of the evidence. It does not confer a discretion.
Secondly, a consideration of s 137 involves in effect, taking three-steps. The first is to determine the probative value of the evidence. The second is to assess the danger of unfair prejudice to the accused. The third is to determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice.
Thirdly, the section refers to the danger of unfair prejudice to the accused, not the fact of unfair prejudice.
I accept that the probative value of Detective Moon's opinions is significant, particularly in view of what will be the sole issue in the trial. However, in my view, this is not simply a case of there being a danger of unfair prejudice to the accused if the evidence is admitted. It is a case of there being actual unfair prejudice to the accused if the evidence is admitted.
For the reasons articulated by counsel, the late service of Detective Moon's report precludes the accused from engaging his own expert and obtaining any report prior to the start of the trial. Counsel is in no proper position to cross-examine Detective Moon without being given that opportunity. The consequence of that is that if this evidence is admitted the trial would, in fairness to the accused, necessarily have to be vacated. In that event, the accused would have to wait at least six months, and possibly substantially longer, before his trial took place, in circumstances where he has already been held in custody for a significant period of time. In my view, a combination of those matters leads to the unassailable conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. For those reasons, I propose to make an order excluding the evidence.
However, before doing so, I am compelled to observe that what has been allowed to occur in this case is deplorable. There is simply no other word to describe it. For my part at least, a situation of this kind is intolerable.
One of the most fundamental principles of the system of criminal justice under which we operate in this country is that an accused person is entitled to know the case that he or she is required to meet. A necessary corollary of that principle is that an accused person is entitled to be appraised of that case in sufficient time prior to his or her trial to properly consider the evidence, to instruct lawyers, and to obtain any evidence which his or her lawyers consider necessary for the proper conduct of the defence case.
Those principles were breached, and breached significantly, in the present case. It is a matter of considerable concern that, notwithstanding the fact that such principles are fundamental, their importance was obviously lost on a number of persons involved in the investigation and preparation of the case against this accused.
Those who have the responsibility of preparing evidence for use in criminal proceedings, and those within the office of the DPP who have the carriage of such proceedings, should clearly understand that if obtaining and serving of important evidence, of whatever kind, is approached in the entirely unsatisfactory and lackadaisical way in which it was approached in the present case, the admission of such evidence will necessarily be put at significant risk.
I am informed that there is a further (unrelated) issue which requires determination prior to the trial. In all of these circumstances, I make the following orders:
1. The expert opinion evidence of Detective Senior Sergeant Greg Moon contained in paragraphs 15.2; 19.2; 19.3; 62.3.1; 62.5.1; 62.6; 72.3; 72.4 and 72.5 of his statement of 3 January 2021 is excluded.
2. The trial date of 1 February 2021 in the Supreme Court of New South Wales sitting at Queanbeyan is confirmed.
3. The matter is listed for further directions at 9.30 am on Friday 29 January 2021.
4. The Crown is to file and serve a notice of motion and submissions in support by 4.00 pm on Monday 25 January 2021.
5. The accused is to file any submissions in reply by 4.00 pm on Wednesday 27 January 2021.
6. I make an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the attendance of the accused by AVL on that day.
[2]
Endnotes
See R v Sharpe (No 1) [2020] NSWSC 1794.
See R v Rice (No 4) [2014] NSWSC 1525 at [31] - [32], and R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364 at [23] -[25].
(2008) 188 A Crim R 331; [2008] NSWCCA 209.
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Decision last updated: 24 February 2021