By a Notice of Motion filed on 19 February 2018, the accused sought the following orders.
"1. Direct that the Crown serve or re-serve in one bundle (both in hard copy and soft copy) all documents required to be served under s 141(1)(a) of the Criminal Procedure Act 1986 so that:
(a) documents are collated separately in relation to each count in the indictment, or where appropriate each group of counts (but ignoring relevance to any count only by reason of being or being connected to tendency evidence or coincidence evidence);
(b) in respect of each document that is said to be relevant to another count or counts by reason of being or being connected to tendency evidence or coincidence evidence, there be a statement to that effect in respect of such document;
(c) the bundle is paginated; and
(d) there be on the cover of the bundle an index of the documents therein."
In support of that affidavit the accused relied upon two affidavits of Ms Elizabeth Ramsay; one sworn 18 February 2018, and the other 28 February 2018. In response, the Crown relied upon the affidavit of Ms Emily Poole of 21 February 2018.
The submissions of the accused can, I hope not unfairly or inaccurately, be summarised in this way. First, there has never been a single consolidated Crown Brief served. Secondly, that the original Police Brief served during the course of the committal hearing itself was served in five parts, each of which had a separate (and not consolidated) index. Thirdly, even with the benefit of the indexes compiled for those five parts of the Police Brief, not all the documents were identified with particular individual events of criminality, and some which related to "multiple events" did not necessarily indicate whether that was two of the seven events, or all of the seven events, or some combination thereof.
Next, the submissions contended that, in respect of documents served since 1 January 2017, particulars of which were usefully captured in the 21 page annexure marked "A" to Ms Poole's affidavit, they have not been served as part of the overall Brief with an appropriate index, and have not been paginated. And further, that where it is indicated that documents have been served by way of disclosure, it is difficult for the accused to know without further detail in what respect or respects the disclosure has been made.
By way of example, on 16 November 2017, a document entitled "Death Certificate for Phillip Hodgson" was served. It was noted as being by way of disclosure, but it was not clear in respect of which event that document was served. It is now apparent that it was served in relation to the event which has become known as the "Watts Bombing".
By way of contrast, on 6 July 2017, the Crown served a report by Acting Justice Brian Martin, concerning a review into the conviction of David Harold Eastman. As is now apparent, that was served as potentially relevant to the credibility of one of the witnesses to be called in the Crown case.
During the course of debate about this Motion, the Crown indicated that it was able overnight to provide a reference for documents served by way of disclosure to particular events, and that has been done.
The gravamen of the accused's submission was that the piecemeal service of the Crown Brief, exacerbated by service of documents over the last six or seven months without adequate reference, has made it very hard for the accused to fully understand the evidence which the Crown proposes to adduce at trial by reference to the particular witnesses and events.
Accordingly, the accused sought in effect a consolidated Crown Brief and, in particular, a consolidated index making it clear what was in the Crown Brief, what was to be adduced in evidence, where it was to be found, and for it to be presented in a logical manner which was easily able to be navigated and searched.
Submissions for the accused also drew attention to the fact that the nature of the proceedings on the Indictment, which include seven separate criminal events or events of criminal conduct over approximately a 3½ year period, make it more difficult for the accused to have an understanding of precisely what case is being put with respect to each episode of criminality. The accused sought, pursuant to s 142 of the Criminal Procedure Act 1986, that the Crown be ordered in the way described to produce a new Crown Brief.
The Crown opposed the grant of such relief, contending that the steps that it had taken to date made it clear what documents were to be tendered, which event the document referred to, and that it (the Crown) had meticulously complied with its obligation of disclosure.
The terms of ss 141 and 142 of the Criminal Procedure Act govern the mandatory pre-trial disclosure provisions with respect to the Crown in criminal trials.
"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.
(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,
(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.
..."
It is appropriate to have regard to the terms of those sections.
The accused contended that subsections 1(h), (i) and (j) of s 142, by use of the words "relevant to the case", required the Prosecutor to separate the Brief which has already been served into a one with respect to each event of criminal conduct, so that the accused would know the case to which the documents would relate.
I am not persuaded that that is the correct interpretation of s 142. It seems to me that s 141 governs the way in which that phrase is used in s 142.
The terms of s 141 direct attention to the indictment. The words "after the indictment is presented" in conjunction with "notice of the prosecution case" in s 141, seem to me to suggest that the obligation in s 142 is for the prosecution to give notice of its case, namely the case contained within the indictment. So that when one comes to read subsections (h), (i) and (j) of s 142(1), the words "relevant to the case" there bear the meaning that the various documents, information and so on, are relevant to the case made by the prosecution on the indictment.
However, clearly s 142 is intended to ensure that, by the mandatory pre-trial disclosure required of the Crown, an accused is seized of various categories of information, including: the charges with which he or she is to face; the statement of the facts by which the Crown case is constituted; a copy of the statement of each witness, whether in writing or recorded by audio, together with a copy of all relevant documents which the prosecutor proposes to adduce at trial, and that this material is provided to the accused. As well, the balance of that section deals with the provision of other material which the Crown proposes to adduce as part of its case at the trial.
The section also refers to the Crown's obligation of disclosure, but in terms that the disclosure relates to the prosecution case or the defence case, if that be relevant.
A part of the evidence before the Court, both as an annexure to the affidavit of Ms Ramsay, and by reason of a tender by the Crown today, is an updated document in table format headed "Order of Witnesses for Trial". It has become apparent that the Crown has prepared a comprehensive document which lists every witness proposed to be called at the trial in the order that the witness is presently proposed to be called. There have been a number of earlier versions of this document.
Of course, the order for witnesses at trial may well change because one witness or another may be temporarily unavailable, or by reason of transport or other arrangements a particular witness may not be available on a particular day.
But in general terms, that document "Order of Witnesses" seems to me to deal with evidence which is admissible as being relevant to all events, evidence which is admissible in relation to each of the seven events of criminal conduct, and evidence which relates to an exercise undertaken by the investigators with respect to the elimination of other possible suspects. Finally, the evidence will relate to matters relevant to the accused as an individual.
This Order of Witnesses appears to me, at this stage, to be a logical order, generally in chronological form. And together with nominating the order of witnesses, the document lists every statement, affidavit, record of interview, or other document which that witness will attest to or, alternatively put, which contain the facts that will be led from that witness in one form or another.
It is necessary just to divert for a moment to indicate that, in this list of witnesses, the names of individuals who have given statements but who are now deceased are also included. I take it from the way in which they have been referred to that the Crown will deal with the tender of those documents at the time those witnesses' names appear on the list.
But to return to the order of witnesses, to the extent that the Brief which has been served over time by the Crown may include statements or other documents that are not to be tendered in evidence, it is clear from the document now before the Court and headed "Order of Witnesses For Trial" what evidence the Crown proposes to adduce at trial and which is relevant to its case.
In all of those circumstances, and having regard to the difficulties and time delay which would be involved in acceding to the Motion bought by the accused, including the copying and service in a different order of a very large number of pages, I have not been persuaded that the Crown's compliance with s 142 has been inadequate, or such as to merit any relief of the kind proposed.
However, in the course of debate on this Motion, it became apparent that any assistance which could be provided to the accused's lawyers in their preparation of the case would advance the interests of justice and ensure, or take significant steps towards ensuring, that the matter could proceed efficiently once the trial begins.
Accordingly, following upon a submission from Ms Ramsay, I took up with the Crown the question (which the Court might ultimately have taken up as a matter of ordinary case management) as to how the Crown intended at trial for there to be appropriate access to the Crown Brief, in a way which was consistent with the courtroom which was to be used and its relatively limited storage capacity. In other words, putting it differently, I have been informed that the Crown Brief may contain as many as 50 large folders of paper. Even if it does not contain that number, but contains 25 large folders of paper, I would imagine that the Court now would have in it at least four sets of those folders. Contemplated in that way, the notion that there might be one hundred large folders of papers in the courtroom to which different parties would have access, and which the Court would need to access, presented a significant management issue.
I invited the Crown to consider whether at trial, following upon a submission from Ms Ramsay, it might be more efficient to have a database available electronically which captured in the document "the order of witnesses for Trial", each of the statements and other documents to which the witnesses would refer in the order in which that list presents, and then delineated by the name of the witness.
The Crown made enquiries with respect to that, and has informed the Court this morning that it would be in a position to provide to the accused and his lawyers, and to the Court, a database contained on a storage device which had as part of it an index to the witnesses for trial in, I assume, much the same format as the document headed "Order of Witnesses For Trial", and in the documents and evidence referred to in the order in which the Crown intends to tender it.
Putting it differently, the Crown is in a position to provide to the lawyers for the accused and the Court an electronic database of the material which it proposes to adduce in evidence. The Crown draws attention to the fact that each of the statements and other documents described, and which will be part of that database, has previously been served and provided in one format or another.
The Crown requires two weeks to put that database together. It seems to me that provision of the document headed "Order of Witnesses For Trial", the additions overnight to the document which I can conveniently refer to as "Annexure A" to Ms Poole's affidavit, and the undertaking by the Crown of the preparation of an electronic database sooner rather than later, in combination will adequately address all of the matters raised by the accused, but without acceding to the orders which the accused has sought in the Notice of Motion.
In those circumstances, I propose then to make an order that the Crown is to serve two sets of an Electronic Court Book setting out the order of witnesses for trial and the statements and other records to be adduced in evidence.
I will, of course, grant the parties liberty to apply in respect of that issue. And I would expect the lawyers for the Crown and the lawyers for the accused to hold discussions about whether the format of that Electronic Court Book can be constituted in a way which assists the interests of justice by assisting all of the parties to navigate through the document easily.
I refrain from making any specific order of a technical kind about that database, but I would expect that it would include, at the least, a facility whereby the index of names of witnesses is hyperlinked to the documents relevant to that witness. I would expect it to have the capacity for the whole database to be searched by a key word. And I would expect, if at all possible within the time constraints available, that if there are any existing hyperlinks and short cuts within existing documents, that they would, insofar as is technically possible, be incorporated into the Electronic Court Book.
I recognise that, in the course of the preparation of this document, it may be necessary for the parties to make submissions to the Court, or draw various matters to the Court's attention, and the parties have liberty to do so on short notice.
For all of those reasons, and in light of those steps, aside from making the orders which I have just indicated, I would otherwise:
1. On or before midday, Friday 15 March 2018, the Crown is to serve on the accused two sets of an Electronic Court Book setting out in the order of the document headed Order of Witnesses for Trial, and by reference to each named witness, the statements and other records which are to be adduced in evidence at the trial.
2. Direct the Crown to provide a copy to the Court by delivery to my Associate.
3. Dismiss the Notice of Motion of 19 February 2018 of the accused which has been called the Crown Brief Motion.
[2]
Amendments
18 February 2020 - Non publication order lifted on 14 February 2020.
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Decision last updated: 18 February 2020