Leave is sought by the lawyers for the Accused to file in court a Notice of Motion dated 12 July 2018, which claims three particular orders. For convenience, I will refer to this Motion as the "Document Redaction Motion".
The first order claimed is that the Commissioner of New South Wales Police ("the Commissioner"') produce documents without redactions in answer to the subpoenas issued by the Accused. The second order is that the police officer responsible for disclosure in answering subpoenas, namely, Detective Russell, be available for cross-examination on the adequacy of compliance with subpoenas. The third order is that the hearing be adjourned for a period of 28 days from Monday, 16 July 2018.
[2]
Redacted Material
It appears from material annexed to the affidavit of Elizabeth Ramsay sworn 12 July 2018, and in particular Annexure "D", that, at least, the duty book of Detective Dowson has been produced in a copy form with significant parts of the contents redacted in answer to one of the subpoenas issued at the request of the Accused to the Commissioner.
I am informed, and I accept, that there are other documents that have been produced on subpoena by the Commissioner which have also been redacted, so that not all information in those documents is available to the reader. It is not uncommon and may, in many circumstances, be uncontroversial that redactions are made in documents produced under subpoena. First, in the area of police investigation, redactions may be made because the information relates to an investigation which is entirely different from this matter which is before the Court. Secondly, information may be redacted often in quite small quantities, because it constitutes personal information about an individual which is of no particular relevance or importance to the information generally contained in the document.
Thirdly, it may be that the material is redacted because the Police may have available to them a claim for public interest immunity or some other form of privilege which covers the production of the document, or part of its contents. The making of redactions in the documents produced is an informal way of advancing those claims in the first instance. If, however, those claims are challenged, then it is a matter for the person producing the documents, in this case the Commissioner, to justify the redactions and advance a proper basis upon which material has been withheld from production.
Accordingly, if the Accused contests, as is here the case, that the redactions are inappropriate, it will become a matter for the Commissioner to justify them. It is appropriate therefore, to give the Accused leave to file the Document Redaction Motion. I order that the Motion be returnable at 9.30am on Monday, 16 July 2018. I note that it has already been served on the Commissioner's lawyers, but I require that the Accused's lawyers inform their counterpart lawyers for the Commissioner of the listing for next Monday.
At that time, depending upon the submissions which are made, I anticipate I will fix a timetable by which the claim to an entitlement to redact that material can be determined. It will be necessary in the course of determining that question, for the Court to be informed whether it is anticipated that any of the material about which there is a contest will need to be inspected by the presiding judge and if so, whether it is inappropriate for me to inspect that material. I note these matters so that consideration can be given to them in advance of any submissions with respect to the proper process to be followed on Monday.
[3]
Subpoena Compliance
As well, once the Commissioner is before the Court, the question of what process, if any, should be followed with respect to order 2, which involves whether there should be cross-examination about compliance with the three subpoenas addressed to the Commissioner, can be dealt with.
[4]
Adjournment
As noted earlier, the third order in the Document Redaction Motion is that the hearing ought be adjourned for a period of 28 days. In support of that application, to the extent that it was pressed, Mr Conolly for the Accused drew attention to the contents of three affidavits: that of Ms Brain sworn 11 July 2018, that of Ms Ramsay of 12 July 2018 and a further supplementary affidavit of Ms Ramsay of 12 July 2018. It does not seem to me that the supplementary affidavit of Ms Ramsay is directly on point, and it can be put to one side.
I have read carefully the other affidavits. In my view, the considerations raised by them and the matters of fact to which those affidavits draw attention, are matters that have fallen for consideration in the arguments which I have heard with respect to the adjournment of the proceedings, and which I determined adversely to the Accused by orders made on 6 July 2018 and in respect of which I delivered reasons today: R v Warwick (No.30) [2018] NSWSC 1051.
As well, in addition to the matters dealt with in the affidavits, Mr Conolly, for the Accused, made oral submissions and handed up written submissions dealing with the question of whether or not the trial should re‑commence on Monday 16 July 2018. It is clear from the reasons for judgment in R v Warwick (No.30), that the submissions advanced by the lawyers for the Accused on the obligation of disclosure falling onto the prosecution, and my conclusion about what that obligation entailed, are not the same.
In my view, the matters raised in these recent affidavits can be adequately dealt with by ordinary case management orders made in the course of the trial. There comes a time in all large and complex criminal trials, and this is rightly described as one of those, where the public interest requires that evidence in a trial starts, that the evidence is led in an orderly way and that any procedural unfairness which may emerge in the course of that trial is dealt with by orders made in the course of the trial. Given that this long and complex trial is to be heard by judge alone, the capacity of the Court to make orders in the course of the running of the trial is not nearly as constrained as it might be if a jury were empanelled.
I do not think that the trial ought be delayed any further. I accept that the lawyers for the Accused, since they were first instructed, have been diligent in the preparation for trial, and I accept that, as is not uncommon with all lawyers in advance of a large case, the apparent benefit of further time for preparation is enormously attractive. But on the material that I have been provided with, I do not think that such marginal benefit as may be obtained from a further delay of this trial, is of a king which, if the adjournment is refused, would cause prejudice to the interests of the Accused, or the administration of justice. Nor does it outweigh the capacity of the Court to manage the trial so as to ensure that it is not unfair to the Accused.
[5]
Further Notice of the Crown Case
Finally, it was put by Mr Conolly, really as an adjunct submission to the application for adjournment, that the Court should order the Crown to file a further notice under s 142 of the Criminal Procedure Act 1986. Mr Conolly submitted that a year has passed since the Crown had filed its s 142 Notice ("s 142 Notice") and that in light of all of the events which have occurred since that time, that Notice is no longer correct and can be considered to be wrong in many respects.
Mr Conolly submitted that a s 142 Notice ought be current and up-to-date at the time a trial commences. The current Supreme Court Practice Note dealing with criminal proceedings (Practice Note SC CL 2 - Criminal Proceedings), contains in Cl 11(a) a default time period for the filing and service of a s 142 Notice, which is no later than eight weeks before the trial date. Of course, it is open to the prosecution to file it earlier.
It can be seen that, the Crown is under a continuing obligation to make disclosure of any material that comes into its possession after a s 142 Notice is filed. However, there will always be a reason to argue that a s 142 Notice has become out-of-date or is inaccurate. I cannot accept that, as a matter of general principle, the obligations under the Criminal Procedure Act encompass the filing of an updated s 142 Notice at or immediately before the commencement of a trial.
In my view, in light of the provisions of Div 3 of Pt 3 of the Criminal Procedure Act dealing with pre-trial disclosure and case management, s 142 provides the Court with sufficient power to determine a date by which a Notice is to be filed, which will depend upon the particular facts and circumstances of the individual trial, including its anticipated length and complexity.
I am not persuaded that the Court, assuming it has the power to order a second or subsequent Notice under s 142 of the Criminal Procedure Act, ought make that order in this case.
In my view, the Crown case is adequately outlined. The witnesses to be called have been well notified, the substance of their evidence has been identified by reference to statements and other documents in which their evidence may be contained, and no useful purpose would be served by ordering that any further s 142 Notice be filed and served by the Crown. Accordingly, although there is no formal motion seeking such an order, in light of the submissions on behalf of the Accused that an order ought be made, I have reached the conclusion that I should decline to make such an order.
[6]
Orders
I make the following orders:
1. Order that the Notice of Motion filed 13 July 2018 be made returnable at 9.30am on Monday 16 July 2018.
2. Direct that the Accused's lawyers are to inform the lawyers for the Commissioner of NSW Police of the listing on Monday 16 July 2018 at 9.30am.
3. Refuse the application of the Accused for an adjournment of the proceedings for a period of four weeks.
4. Decline to make any order requiring the Crown to serve any further notice pursuant to s 142 of the Criminal Procedure Act 1986..
5. Stand over the further directions and hearing of that Motion to 9.30am on 16 July 2018.
6. Note that the trial remains fixed to commence at 10am on 16 July 2018.
[7]
Amendments
18 February 2020 - Non publication order lifted on 14 February 2020.
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Decision last updated: 18 February 2020