R v Warwick

Supreme Court of NSW|2018-04-23|Before: Garling J

Judgment

In R v Warwick (No.6) [2018] NSWSC 234, a judgment delivered on 1 March 2018, I made orders requiring the Crown 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."
That order was made in substance to address the gravamen of the Accused's submissions that the nature of the piecemeal service of the Police Brief and the Crown Brief, particularly exacerbated by service of documents in the period between October 2017 and March 2018, made it very hard for the Accused to fully understand the evidence which the Crown proposed to adduce at the trial by reference to particular witnesses and events.
As well, as I noted in R v Warwick (No.6), there could be considerable difficulties with respect to the storage in Court of multiple copies of a paper version of the Crown Brief.
I concluded that it would be in the interests of justice that there be available for the purposes of the trial an electronic database which captured the document which had been provided in paper form entitled "Order of Witnesses for Trial", together with each of the statements and other documents to which those witnesses would refer in the order in which that list presented.
The Crown complied with that order and has provided to the Court, and to the Accused, an electronic database accessible through a software program entitled "Adobe Acrobat Pro DC". It will be convenient to call this the "Crown E-Brief".

Evidence

The evidence relied upon in support of the orders dealing with reformulation of the Crown E-Brief addressed two broad issues.
The first issue that was addressed was the difficulty in searching or using the existing Crown E‑Brief. It was put: 1. that searching was inefficient because of the time a search took to be completed, given that the Crown E-Brief was contained in a single document and was of considerable size (about 20,000 pages); 2. the searching facility, when undertaken, did not provide a list of search results, with a short extract of the result being the sentence in which the result was to be found. This meant that it was not possible to quickly scan those results to identify the relevant ones; 3. the word search functionality within the Crown E-Brief did not always return the desired word searched for; 4. a considerable number of the electronically reproduced documents, in particular, copies of police running sheets, were captured in a form which was not capable of being word searched; 5. the index compiled did not reveal or identify nor provide a hyperlink to, documents that were annexed to, or referred to, in the statements of any particular witness; and 6. the ability of the defence to effectively "extract" and save or print individual documents within the Crown E-Brief was limited; and 7. the size of the file representing the Crown E-Brief resulted in frequent "crashes" of the computer during searches.
The second broad issue to which the evidence related was the ready availability from commercial contractors of a form of E-Court Book ("the commercial format"), which would enable far more efficient searching of the database, far more efficient identification of the documents forming part of the database, and a comprehensive index that would be of considerable assistance to the parties.
The court was informed that, to the best of the information and belief of the lawyers for the Accused, the work involved to convert the database to that commercial format would be able to be completed within a period of one to two weeks, and would likely be at a cost of about $10,000. This evidence was not put in dispute by the Crown.

Proposed Trial Procedure

The Crown proposes to conduct this trial calling witnesses to give their evidence viva voce. The Crown proposes to lead that evidence based upon the statements, transcripts of interviews or transcripts of evidence which have been served. Where relevant or appropriate, the Crown proposes to tender through a witness photographs, recordings, physical items, documents and other relevant material in hard copy.
In other words, the Crown did not propose to invite the Court to provide the jury with a copy of the Crown E-Brief, nor to conduct the trial electronically or by tendering as exhibits large volumes of statements in electronic or written form, to which the jury would then have access within the jury room.
Put differently, although this is a long and complex trial, the Crown proposed to conduct it in the traditional way. The effect of this is that where documents or photographs are to be provided to the jury, it will be a matter for the Crown to ensure that those documents and photographs are legible. If they are not legible, or the images are not discernible, then the likelihood is that the exhibit, even if admitted, will have very little weight in the jury's consideration.
I accept that by reason of the age of this case there will be some exhibits that are not readily legible or where the images are not readily discernible. But that will be a matter for determination when the individual items are tendered to form part of the exhibits.

Submissions by the Accused

The primary submission by the solicitors for the Accused was that the Crown E-Brief presents difficulties in performing the functions of searching and "extracting" documents. Ms Ramsay for the Accused submitted that, as the Crown E-Brief is in the form of a single consolidated PDF file of 19,146 pages, a delay of 20 minutes may occur in extracting a series of individual documents or pages. One example given to the Court was that it took 40 minutes to extract 200 documents in multiple PDFs, with "multiple crashes" of the file.
It was submitted that in light of the large file size of the PDF, navigating the document by using the scrolling mechanism is difficult.
Secondly, Ms Ramsay submitted that the bookmarks between individual parts of the Crown E-Brief were unable to be saved and were not part of the original index.
Thirdly, it was submitted that the commercial format was readily available, and could be provided to the parties quite speedily.
The defence accepted that it would be open to them, on behalf of the Accused, to engage the services of such a document management provider, to provide them with the commercial format. However, it was submitted that there were two reasons for why this service should instead be engaged by the Crown and provided to the Accused and the Court. The first was cost, as it was submitted that it would be unfair for the Accused to bear this financial burden. The second was that, as was submitted, the parties should each have and use the "same document in the same format".
The fourth issue raised by the defence was that the Crown had apparently not identified which documents were in the Police Brief and which are no longer in the Crown Brief. The defence contended that being tasked with comparing the two indexes was "a time-consuming activity" ultimately placing the Accused in an unfair position. It was said that this would be alleviated to a significant extent by the commercial format.
The fifth issue relied upon was that there were inconsistencies in whether the documents comprising the Crown E-Brief were in landscape or portrait layout, and aligned "left" or "right". The defence took issue with these inconsistencies in respect of their ability to easily read and analyse the E-Brief without repeatedly needing to rotate the individual pages.
Finally, a further issue was raised about issues with the legibility of some of the documents in the Crown E-Brief. It was posited that this was of concern if they were to be shown to a jury on screen during the trial. This issue ultimately fell away because, as noted earlier, the Crown clarified that if any documents were to be viewed by the jury as exhibits, these would be presented in hard copy form.

Submissions by the Crown

The Crown opposed the order sought with respect to the reformulation of the Crown E-Brief.
The Crown noted that it had already served on the Accused both paper copies and electronic copies, of the Police Brief and the further additional documents which the Crown is to rely upon. As well, the Crown pointed out that in so doing, it had appropriately complied with its pre-trial obligations in accordance with the provisions of the Criminal Procedure Act 1986 ("the Procedure Act").
The Crown submitted that it had provided the Crown E-Brief in compliance with the Court's order in circumstances where the Crown E-Brief was not the primary material comprising the Crown Brief (which had been adequately and previously served) nor was it a database which was to be put before the jury.
Put differently, the Crown submitted that the Crown E-Brief was supplementary to the proper service of documents as required by the Procedure Act, and was provided as a measure of assistance to the Court and the Accused because of the nature of the proceedings, and the physical layout of the courtroom in which the trial is to be conducted.
The Crown submitted that it ought not be required, in the interests of justice, to undertake the work suggested simply so that it might be more convenient for the Accused to work with a reformulated copy of the Crown E-Brief.
The Crown pointed out that the Accused advanced no reason why he could not undertake the reconfiguration of the Crown E-Brief if he or his lawyers wished to, without the need to require the Crown so to do.

Discernment

A good deal of the evidence relied upon by the Accused about the difficulty with identifying the documents in the Crown E-Brief, their whereabouts, and accessing them speedily, seemed to me to derive from a lack of familiarity with the way in which the Crown E-Brief had been designed and constructed. As well, the evidence seemed to show a lack of familiarity with the searching capacity of the Crown E-Brief, as that capacity is provided by the software program commonly known as Adobe Pro DC. No doubt further use of the program will engender greater familiarity and ease of use.
One of the examples given by the Accused pointing to the difficulties of undertaking a search was that words other than the word being searched for would appear in the results where the letters of the word being searched for were be found as a part of another word. A specific example of this submission was the evidence which showed that, if the word "rope" was searched for, the search result would indicate the word "property" which includes, but is entirely different from, the word "rope". Such search results obtained in that way are a function of the search term which is inserted. If what is desired is identification only of particular letters rather than those letters as part of a bigger word, then such search can be conducted in Adobe Pro DC using an appropriate search mechanism usually used for Boolean queries.
I accept that there are features of the Adobe Pro DC program which are not as sophisticated, or user friendly, as other features in other programs may be. But that is not the test. The question is whether the Crown E-Brief, in the format provided in Adobe Pro DC, is reasonably accessible and can be electronically searched. That it is, is clearly so.
It is entirely possible that a different format may provide a more efficient form of searching. But again, I regard that as beside the point.
The Crown did not intend to provide a Crown E-Brief but was ordered so to do for the reasons which I earlier indicated.
The provision of the Crown E-Brief was ordered so as to assist in issues of management of the Courtroom, and to make more easily accessible the entirety of the Crown Brief, organised in chronological order by reference to the identities of the witnesses being called.
If the Accused is of the view that the commercial format is a better format for the Crown E-Brief, then there is nothing to prevent the Accused from taking a copy of the Crown E-Brief, with which he has been provided, and having it reformatted into a database that does the things which the Accused wishes it to do, including assisting with the types of searches which the Accused wishes to undertake.
The Accused has not shown that it is in the interests of justice for the orders with respect to the reformulation of the Crown E-Brief to be made. There is simply no reason to require the Crown to engage in a not insignificant expense to make the changes which the Accused requests.
I am not satisfied that the Accused's trial will be in any way unfair because of the format in which the Crown E-Brief has been presented including some documents being in landscape and not portrait orientation. This is confirmed by the fact that the Accused, if he wishes, can make the relevant reformatting changes.
In preparation for a criminal trial, different legal representatives will inevitably order the material in different ways, according to how they propose to conduct their defence, or how they think they can best retrieve the information.
The disclosure obligation on the Crown, in accordance with ss 141 and 142 of the Procedure Act, is to serve all relevant material on the defence. The Crown has provided an index of the witnesses, their statements, and the documents to which they refer which the Crown intends to call at the trial. The Crown is not obliged to serve a complete consolidated brief of all of the documents again in the form desired by the Accused.

Summary

It is for these reasons that I order that Orders 1 and 2 of the Notice of Motion filed on 11 April 2018 be dismissed.
The balance of the Motion, concerning the question of the legibility of certain documents in the Crown E-Brief, is stood over until 10am on 30 April 2018.

Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020

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