Edwards v The Queen

[2020] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Edwards v R [2020] NSWCCA 57
Hearing dates:	26 February 2020
Decision date:	03 April 2020
Before:	Leeming JA at [1]; Johnson J at [77]; Harrison J at [78].
Decision:	1. Grant leave to appeal. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – whether Crown’s duty of disclosure breached – appellant charged with counts of sexual intercourse with person over 10 and under 14 – appellant’s mobile phone seized pursuant to warrant – Crown brief referred to download of information from mobile phone being available – Crown case statement referred to text message sent by accused to complainant – appellant did not seek access to download – Crown disclosed witness shortly before trial – no objection or application for adjournment – Crown identified witness from downloaded information – whether duty of disclosure extended to fact that Crown had identified witness from downloaded information – nature of duty of disclosure considered – whether verdicts otherwise unreasonable – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 66C, 112, 578A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 141, 142, 146, 147 Director of Public Prosecutions Act 1986 (NSW), s 15A Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 88 Surveillance Devices Act 2007 (NSW), s 7
Cases Cited:	Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48 Grey v The Queen [2001] HCA 65; 75 ALJR 1708 Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 Marwan v Director of Public Prosecutions [2019] NSWCCA 161 Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 Obierzynski v R [2019] NSWCCA 103 Potier v R [2015] NSWCCA 130 R v Birks (1990) 19 NSWLR 677 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category:	Principal judgment
Parties:	Scott Edwards (Applicant) Crown (Respondent)
Representation:	Counsel: D Randle (Applicant) D Patch (Respondent)   Solicitors: O’Brien Winter Partners (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2017/00070113
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 May 2018 Before: Bright DCJ File Number(s): 2017/000070113

HEADNOTE

[This headnote is not to be read as part of the decision]

The applicant was convicted by a jury in the District Court of New South Wales on six counts of aggravated sexual intercourse with a person aged above 10 and below 14 years of age. The circumstance of aggravation was that the complainant, who was the niece of the applicant’s then wife, was under his authority.

The first four counts related to sexual offending against the complainant which took place in the applicant’s utility vehicle at an early morning “boot camp”, which the applicant was conducting at a council park as a personal trainer. The last two counts related to further sexual offending which took place in the male toilets at the same council park at a second “boot camp” about a week later.

As part of their investigation, police seized the applicant’s mobile telephone and downloaded a copy of its contents. The Crown disclosed to the defence the existence of this download as part of its pre-trial disclosure, and offered to provide a copy of it on request. However, the Crown did not disclose that the records contained on the download might lead to the identification of other witnesses which might assist the defence.

On the business day before the commencement of the trial, the Crown disclosed that it proposed to call a new witness, who went on to confirm aspects of the Crown case at trial. On inquiry by the defence following the conclusion of submissions, the Crown disclosed that it had obtained the witness’ details from the download of the applicant’s mobile telephone.

The applicant sought leave to appeal to the Court of Criminal Appeal from his convictions on all counts.

The issues in the appeal were:

i) Whether the trial miscarried by a combination of the late production of the prosecution witness and the nature and extent of disclosure of the contents of the download of the applicant’s mobile telephone.

ii) Whether the guilty verdicts on counts 6 and 7, namely those in respect of the offences at the second “boot camp”, were unreasonable.

The Court held, granting leave to appeal but dismissing the appeal:

As to issue (i), per Leeming JA (Johnson and Harrison JJ agreeing):

1. It was not part of the Crown’s obligation to disclose how the new prosecution witness was identified in circumstances where the Crown had already disclosed the existence of the entirety of the body of electronic information which had been used to identify that witness: at [50].

2. There was no obligation on the Crown to tell the defence either in general terms that the information extracted from the download of the applicant’s own mobile telephone might be of utility to the defence, or specifically that there were text messages between the applicant and another witness during the indictable period that might render the witness of interest to the defence: at [51].

3. The duties imposed by ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) and s 15A of the Director of Public Prosecutions Act 1986 (NSW) are satisfied by disclosure, and fall short of requiring interrogation of a large body of electronic material where the entirety of that material has been disclosed and made available to the defence: at [55]. It is not for the Crown to anticipate or comment on the ways in which materials disclosed by it might assist the defence: at [57]-[60].

Grey v The Queen [2001] HCA 65; 75 ALJR 1708; Marwan v Director of Public Prosecutions [2019] NSWCCA 161; Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48 referred to.

4. A complaint that the Crown has not fulfilled its duty of disclosure must be looked at in the whole: at [61].

Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 referred to.

As to issue (ii), per Leeming JA (Johnson and Harrison JJ agreeing):

5. The jury were well placed to evaluate the testimonial evidence of the complainant and another Crown witness that the applicant possessed a key to the male toilets where the second round of sexual offending took place, as against what flowed from unclear documentary evidence on this point: at [71]. Any inconsistencies and errors in the witnesses called by the Crown did not make the verdicts unreasonable in circumstances where the complainant had given firm evidence about the details of the sexual offences: at [73].

Obierzynski v R [2019] NSWCCA 103 referred to.

Judgment

1. LEEMING JA: Mr Scott Edwards seeks leave to appeal from his conviction on six counts of aggravated sexual intercourse with a person aged above 10 and under 14, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the complainant (who cannot be named by reason of s 578A of the Crimes Act, but who was his then wife’s niece, aged around 13) was under his authority at a “boot camp” conducted as part of his business as a personal trainer in Kotara near Newcastle in 2012. He was 25 years old at the time. There were seven counts on the indictment, but the second was an alternative count of indecent assault. The jury returned guilty verdicts on counts 1, 3, 4, 5, 6 and 7.

2. The Crown case was that the first five counts took place at a first boot camp at Hudson Park in the applicant’s ute, while the sixth and seventh took place at a second boot camp at Hudson Park in the male toilets.

3. As amended during the hearing, leave is sought to appeal on two grounds:

“Ground 1:    The trial miscarried by the combination of the late production of a key prosecution witness and the nature and extent of disclosure by the prosecution of the contents of the cellebrite download of the applicant’s mobile telephone.

Ground 2:The guilty verdicts for counts 6 and 7 were unreasonable.”

4. It was accepted that neither ground amounts to a question of law alone and therefore leave is required, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). For the reasons which follow, there should be a grant of leave, and it will be convenient to refer to Mr Edwards as the appellant.

5. The second ground is based on what was said to have been the unreliability of the evidence of the complainant, in light of other evidence relating to the toilet block. This ground was substantially left to be advanced in written submissions. The first ground was the primary focus of the appeal. It is more elaborate, and largely turns upon the late disclosure of a Crown witness, Ms Lynn Birchill, who had participated in the boot camps and said that the applicant had a key to open the door of the toilet block and who was assumed by the defence and asserted by the Crown to have been “independent”. It also turns upon an electronic copy of information extracted from the appellant’s mobile phone, described as the “Cellebrite download”. The existence of this was disclosed by the Crown, repeatedly, in advance of the trial, but it only became the subject of a request for access late during the trial – after the cases had closed and both sides had addressed the jury – when the Crown advised that Ms Birchill’s details had been obtained from the Cellebrite download.

6. The first ground requires a detailed summary of the Crown case, as it was disclosed in advance of the trial and as it unfolded during the trial. In part it depends on evidence not before the jury as to the process and timing of the process relating to Ms Birchill and the Cellebrite download. By the same token, the narrowness of the grounds means that it will not be necessary to summarise much of the evidence which was before the jury. It will be convenient to deal with ground 1 immediately, and then return to ground 2 which is much narrower in scope and is confined to the jury’s verdicts on counts 6 and 7.

Chronology of the criminal proceedings

7. The appellant had been arrested on 6 March 2017 and has been in custody at all times thereafter. He was committed for trial on 11 October 2017. The trial was listed for Monday 14 May 2018.

Overview of the pre-trial disclosure and the trial in the sexual assault prosecution

8. The materials in this Court appear not to disclose precisely when the appellant’s mobile phone handset was seized. It was uncontroversial that it contained records of many thousands of text messages sent and received. On at least three occasions, prior to the trial, mentioned below, the Crown disclosed that there was a “Hard-Drive containing … Phone Download Report (iphone 6 EFIMS X0002614993)”.

9. The appellant’s trial on the sexual assault charges commenced on Monday 14 May 2018. The complainant (who was then aged 19) gave evidence in chief and was cross-examined via CCTV from another location late on the Tuesday afternoon and on Wednesday prior to the luncheon adjournment. On the Wednesday morning, the judge granted an application for short service of a subpoena requiring the attendance of Ms Birchill. The remaining witnesses were called on Wednesday and Thursday, including Ms Birchill on the Thursday morning. The defence case was brief, and the appellant did not give evidence.

10. The Crown and the defence addressed from around 2 pm until 3:40 pm on the Thursday afternoon, when the trial was adjourned to Monday 21 May. The judge summed up during that morning, with the jury retiring at 12:25 pm. An application was made by the Crown on the morning of Tuesday 22 May, apparently shortly after 9:20 am, for a direction concerning an article in an online publication, which was opposed by the defence and refused by the primary judge. The jury returned its verdicts at 10 am that morning.

The second indictment – the “listening device matter”

11. It is also necessary to note that the appellant was to stand trial on a separate indictment of one count of break and enter and commit a serious indictable offence, contrary to s 112(1)(a) of the Crimes Act, and one count of unlawful use of a listening device, contrary to s 7(1)(a) of the Surveillance Devices Act 2007 (NSW). It is convenient to use the appellant’s terminology and refer to this as the “listening device matter”. These counts related to conduct some years after the sexual assault charges whereby the appellant installed a listening device in the children’s room of a house occupied by his former wife, three children of that marriage, and her current partner.

12. The trial on that second indictment was listed for hearing on 28 May 2018. The trial did not proceed. The appellant ultimately pleaded guilty on 31 May 2018.

The pre-trial disclosure

13. As part of the pre-trial procedures, the Crown supplied brief indexes in each prosecution. Each mentioned the “Hard-Drive containing … Phone Download Report – Scott Edwards (iphone 6 EFIMS X0002614993)”. Each also mentioned the search warrant.

14. On Tuesday 8 May 2018, the ODPP supplied a “Proposed Witness/Exhibit List” for the sexual assault trial. The list identified various witnesses, and the subject matters of their evidence. The list concluded with a section headed, “Not Required”. In that section there was a police officer associated with “cellebrite download” [sic]. That officer did not give evidence at the trial, although his statement of 19 July 2017 described how he had “utilised a Cellebrite phone downloading device to obtain information stored on” the appellant’s handset. The Crown did not ultimately tender any of the data obtained from the handset. Moreover, the proposed witness list did not include Ms Birchill. Notice that the Crown’s proposal to call Ms Birchill was only provided on the afternoon of Friday 11 May 2018; I return to the details of this below.

The appellant’s representation

15. The appellant was represented by the same solicitor in both matters. It is not clear on the evidence whether counsel briefed in the trial was retained on the listening device matter; nothing turns on this. Uncontroversial evidence was adduced in this Court that throughout the committal procedure, “there was evidence served in both the sexual assault matters and the listening device matter”, and that the “evidence in each case substantially overlapped”.

Crown case

16. Returning to the sexual assault proceedings, the Crown case included a statement of facts provided (in amended form) on 16 April 2018. It relevantly described conduct preceding the assaults as follows:

Sexually Suggestive Conversations with the Complainant

14. In 2012, [the complainant] accessed a pornographic movie on her iPod and watched it.

15. [The defendant’s former wife] was in the habit of periodically checking [the complainant’s] internet search history and discovered that [the complainant] had viewed a pornographic movie. [The defendant’s former wife] discussed the issue with the defendant and they agreed to not say anything to [the complainant].

16. However, not long afterward, the defendant sent a text message to [the complainant] whilst she was at school, stating that they had discovered the pornographic movie on her iPod and suggested that she delete her internet search history.

17. After that conduct, the defendant made a number of comments to [the complainant] that made her feel uncomfortable ...” (emphasis added)

17. Thereafter, the statement described an incident in about November 2012, when the complainant was about 13, when she accompanied the appellant to a boot camp he ran in the morning at Hudson Park. The Crown alleged that when it was dark, not long after 4 am, the appellant rubbed the complainant’s vagina and clitoris underneath her tracksuit pants and beneath her underwear, following which he performed cunnilingus, inserted his middle finger into her vagina, and then asked her to fellate him which she did. Other participants arrived shortly afterwards. The Crown case was that after the boot camp was completed, the appellant drove the complainant home, saying “We’re not blood relatives so it’s ok”. This conduct gave rise to counts 1, 2, 3, 4 and 5 on the indictment.

18. The Crown statement then referred to a second incident, about a week afterwards, again involving digital penetration of the complainant’s vagina and fellatio at an early morning boot camp at Hudson Park. This conduct gave rise to counts 6 and 7 on the indictment. This time the location was the toilet block. The statement contained these paragraphs:

“31. As was the case on the last occasion, they both left the house at about 4am and drove in the accused’s car to the same car park.

32. The accused parked and they both got out of the car. The complainant followed the accused to the toilet block, and using a key, the accused opened the men’s toilets. They both went inside and the defendant told the complainant to sit on the toilet, to which she sat down in a cubicle on a toilet seat lid.”

19. The Crown statement referred to the complainant making complaint to her cousin twice thereafter:

“39. In about 2012, the complainant complained to her cousin xxxx on two occasions.

40. On the first occasion, the complainant told [her cousin] that the Accused had touched her, had grabbed her boobs and when he had parked the car he had touched her vagina.

41. On the second occasion, the complainant provided more detail and told [her cousin] that the accused had ‘fingered her’. At the time the complainant was crying.”

The evidence of Ms Birchill

20. The first ground of appeal referred to the late provision by the Crown of notice of a new witness, Ms Birchill. A short handwritten statement from a police notebook dated 11 May 2018 was provided to the accused’s solicitors by email at 4:53 pm on Friday 11 May 2018. Ms Birchill in that statement said that she attended boot camps conducted by the appellant in around 2012, including at Hudson Park early in the morning. In her statement, she said that people attending the class put their stuff near the toilet block, and that while she only used the toilet there once, the accused had a key to it. She said she had had a conversation with him “where he told me he had applied to the Council for permission to use the park and that’s why he had a key to the toilet block”.

21. The email which attached that statement gave no explanation for how the Crown had identified Ms Birchill, or why it was being served so late.

22. No application was made to adjourn the trial. No application was made to exclude Ms Birchill’s evidence for non-compliance with s 146 of the Criminal Procedure Act 1986 (NSW).

23. Ms Birchill gave brief evidence on Thursday 17 May 2018 (the evidence from Monday to Thursday lunchtime occupies 191 pages of transcript, of which 3 and 4 pages were, respectively, Ms Birchill’s evidence in chief and cross-examination). She said that the appellant had a key to the gate that opened the toilet block at Hudson Park. Her cross-examination was brief. Counsel confirmed that she had first been asked to give evidence 6 days earlier. She confirmed that the boot camps which she attended with the appellant could have been earlier than 2012. She was asked some questions concerning which toilet she had used in the toilet block, which as I read them tended to confirm she had an actual recollection of the configuration, and after which counsel moved to a different topic. She was not challenged about her evidence that the appellant had a key to the toilet block.

24. Following Ms Birchill’s evidence, there was short evidence from a police officer, and two witnesses in the defence case. One, Mr Pascoe, gave evidence of the configuration of the toilet block which he had walked through with a video camera in 2018, more than 5 years after the events charged as counts 6 and 7. The other gave evidence going towards the appellant’s movements in 2012. The appellant did not give evidence (as was his right).

20. Thereafter, the Crown and defence cases were closed, and closing addresses by Crown and defence were made. They were quite brief (according to the transcript, from around 2 pm until 3:40 pm). The most important witnesses in the Crown case were the complainant and her cousin, and both featured prominently in the closing address. However, Ms Birchill’s evidence was not unimportant. The Crown stressed three aspects of her evidence.

1. It was said that “you might think the accused did have a key to the toilet block at Hudson Park at some time in 2012 if the evidence of Lynn Birchill which you heard today is to be accepted”, in support of a submission that the complainant’s evidence that the appellant had a key was to be accepted. This point was repeated by the prosecutor in connection with some questions and answers between the police and the appellant in an electronically recorded interview.

2. The complainant also gave evidence that she had attended a boot camp at a Westfield car park, as did Ms Birchill. The Crown submitted in final address “I expect you probably think that Lynn Birchill is a pretty independent, sort of, witness. You’ll probably accept that what she described actually occurred.”

3. It was also said that there were four parts of the complainant’s evidence which were “pretty important” in the jury’s assessment of what happened: (a) that she had attended boot camps run by the appellant in around 2012, (b) that there was an occasion when she used the toilets at Hudson Park, for which the appellant had the key, (c) that when it was raining, the boot camp was in the Westfield car park at Kotara, and (d) that sometimes she assisted in setting up the boot camp. The prosecutor then added “the Crown says to you each of those four matters or subjects that Lynn Birchill told you about provide significant support for what [the complainant] described.”

26. Although defence counsel scarcely mentioned Ms Birchill, I do not regard that as bearing one way or the other as to her significance.

27. The trial adjourned on Thursday afternoon to resume with the judge’s summing up on Monday 21 May 2018.

The inquiries concerning Ms Birchill and the Cellebrite download

28. There was a deal of evidence in support of ground 1 which had not been before the jury. Large portions of two affidavits, made by the appellant’s solicitor and Mr Pascoe, were objected to and not read, and much of what was pressed was rejected. What follows is a fairly full summary of the entirety of the material admitted into evidence in this Court concerning this period of the trial, which is crucial to ground 1.

29. Early on the morning of Friday 18 May 2018, Mr O’Brien wrote to the ODPP as follows:

“Hi Max,

Are you able to disclose how it is that Lyn [sic] Birchill came to the attention of the OIC? I note that this witness gave a statement the Friday before the trial was expected to start.

It was a predictable requisition that your office would have made of the OIC to locate a witness who could verify where the defendant actually did training sessions.

It seems so weird that a witness apparently independent of the complainant came to know that at least two of the issues before the Court was Hudson Park and the existence of a key. It obviously did not go unnoticed that when the witness gave evidence that she volunteered Alder Park and other training locations ye[t] it was not mentioned in the police statement.

This witness surely would not have known about the issues at trial or the date of trial unless someone told her.

As you can appreciate, the defendant is facing many years in custody if he loses his trial.

Can you please disclose?

I am available to chat by phone today if it is easier to explain.

Kind regards.

Christopher O’Brien”

30. Promptly thereafter, at 9:31 am, there was the following response:

“The OIC was asked to obtain a statement from Ms Birchill following a requisition from our office. Ms Birchill’s details were obtained from the Cellebrite download of Mr Edwards’ phone.

This office is unaware of any contact between the complainant and Ms Birchill at any stage, or even whether they know each other.”

31. By email at 1:10 pm that afternoon, Mr O’Brien responded:

“Thanks Max.

I did not know about the download.

Sorry to be a pain but [can] you ask the OIC if I can get a copy?”

32. The response at 2:01 pm was:

“I note that the Cellebrite download was on the brief index sent to you as part of the notice of prosecution case and also in my email dated 03 May 2018.

I’ll make enquiries with the OIC as to whether a copy can be provided.”

33. The letter of 3 May 2018 had enclosed another copy of the Crown brief index, which included as its last item “Hard-Drive containing Cellbrite [sic]”, and had stated:

“I have enclosed an updated Crown brief index. If there are any outstanding items, please let me know as a matter of urgency and I will provide these items to you.”

34. Ultimately, a copy was provided on Wednesday 23 May. The solicitor gave evidence that “It took me about a week to work out how to isolate some of the relevant files. I concede that I am not an expert”. He observed that there were in excess of 60,000 files, including in excess of 20,000 text messages.

35. The entirety of the evidence relating to the files was as follows. The solicitor said, “It was only after receiving the hard drive from the prosecutor that enquiries were made about Lynn [Birchill]”. He also said that there was another “potential witness”, who exchanged text messages with the appellant. Aside from Ms Birchill, she was said to be the only person “to apparently have had contact with the appellant about boot camps or training at any location during the indictment period.” She had not been disclosed by the prosecution as a relevant witness. The text messages between the appellant and that witness were tendered in this Court. They date from 12 October 2012 to 5 July 2013, with 35 being in the period stated in the indictment (October – December 2012). Many of them refer expressly to training for boys to take place at 3:30, 3:45 or 4 pm on a weekday afternoon (for example, “O.k. Won’t be there till about 3.45 as can’t make it from Whitebridge by 3.30” and “I was going to ask if 3:00 would be ok”). Others are requests from the appellant (“Are the boys coming today?”) which read as training sessions in the afternoons. None suggests an early morning session.

36. There was also evidence that the Cellebrite download if printed would be 5,948 pages in length.

37. Returning to the trial, most of the Monday morning was occupied by the summing up by the trial judge, which occupied 57 pages of (double-spaced) transcript. The jury retired at 12:25 pm. Two pages summarised Ms Birchill’s evidence, and merely recounted its essence in neutral terms. Her Honour also summarised the Crown submissions, saying the following about Ms Birchill:

“And also Lynn Birchill, the Crown said to you she is an important witness because she is independent of either the complainant or the accused. She said there [were] boot camps at Hudson park. She said the accused had the key, and there was some conversation about the council having given him the key. And she also confirmed training at Westfield.”

38. The jury returned a verdict on Tuesday 22 May 2018 at 10 am. Later that afternoon, in the context of the imminent trial on the other charges, the Crown asked Mr O’Brien for an update. At 3:23 pm, Mr O’Brien responded saying that in the interests of justice, he would seek to vacate the trial date because he had been told that there was a Cellebrite download of his client’s mobile phone. What happened between then and the guilty verdicts entered a week later on the listening device matter is not disclosed by the evidence.

Submissions in support of ground 1

39. The appellant’s written submissions in chief were wide-ranging, and addressed matters based on evidence which had been served but which was not read. Helpfully, a further written submission was supplied, this time signed by counsel who presented the appeal, which substantially narrowed the issues, expressly withdrawing aspects of the earlier submissions.

40. The appellant’s principal submission, as refined during oral submissions in this Court, was that there had been a breach of the prosecutorial duty to disclose when on 11 May 2018 the Crown had disclosed the new witness statement of Ms Birchill, but had not disclosed that she had come to the Crown’s attention through review of the Cellebrite material.

41. The submission was formulated as follows:

“The issue for the Court’s determination relates to what, in the applicant’s submission, is a convergence or confluence of two issues. That is, the fact that at a very late stage of the game, quite literally on the eve of trial, the prosecution for the first time, produced a witness, Ms Birchill, and a handwritten statement from that witness and that witness turned out, it seems uncontroversially both below and in this Court, to be a key witness, and issues relating to the level of disclosure required in respect of how it is that witness came to be – [of] course we know, in this Court, that was as a result of an examination of the Cellebrite download.”

42. The appellant emphasised that Ms Birchill was a critical witness in the Crown case. In particular, her independent recollection of training with the appellant at Hudson Park in the mornings, and his ability to access the toilet block, corroborated the evidence of the complainant.

43. The Crown acknowledged there was owed a duty of disclosure, but denied any breach. The Crown said that the Cellebrite material was based on the appellant’s own phone, and that he must have been aware of the general nature of the material (including text messages) stored upon it. It may also be noted that, as was raised during the hearing, at least one text message, that said to have been sent to the complainant in 2012 asking her to delete her internet search history, must have been brought to the attention of the appellant and his lawyers, because of the reference to it in paragraph 16 of the Crown Statement of Facts. The Crown also emphasised that any suggestion of incompetence of counsel had been disavowed.

Consideration

44. This ground turns on “the late production of a key prosecution witness” and “the nature and extent of disclosure” of the Cellebrite download.

45. Ms Birchill was a Crown witness notice of whom was provided very late, to whose evidence no objection was taken and no adjournment sought. In the absence of any allegation of “flagrant incompetence” or the like associated with R v Birks (1990) 19 NSWLR 677, TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 and Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301, causing a miscarriage of justice, I fail to see how anything could turn on Ms Birchill’s evidence considered by itself.

46. (For completeness, I note that the written submissions in this appeal sought to make much more of Ms Birchill, based on material obtained from the Cellebrite download which suggested that she was not “independent”. These were specifically and expressly withdrawn by the submissions in reply filed on 20 February 2020 (notably, paragraphs 9(c) and (d)). I regard the withdrawal of those submissions as properly made, in part because of the form and nature of the evidence on which they were based, and in part upon the reality of the situation that, even taking the evidence at its highest, it did not detract from Ms Birchill’s independence in the relevant sense as a participant in early morning boot camps at Hudson Park who recalled that the appellant had a key to the toilet block.)

47. It was also candidly acknowledged that it could not be said that there was no disclosure of the Cellebrite download. That concession was rightly made. Repeatedly, and well in advance of the trial, its existence was disclosed on the Crown brief in this prosecution as well as in the listening device matter. Had the defence requested access to it, there is no reason to doubt that it would have been provided, promptly, as in fact occurred.

48. There were two aspects of the large body of electronic information constituting the Cellebrite download which were arguably not disclosed by the Crown:

1. the fact that those records had been used to identify Ms Birchill as a potential Crown witness and to contact her; and

2. the fact that those records might lead to identifying other witnesses which might assist the defence.

49. There was no challenge to the evidence adduced from her by counsel then appearing for the appellant at the trial that Mr Birchill had first been contacted on 11 May 2018, when her brief handwritten statement in a police officer’s notebook was made, and there is nothing in her evidence to suggest that she was known to the Crown beforehand. Although there was no evidence of it, it seems likely that the imminence of a trial caused someone acting on behalf of the Crown to think that it might be desirable to find evidence corroborating the complainant’s accounts that the appellant trained with her at Hudson Park in 2012. It is not uncommon in litigation for the focus on an imminent trial to lead to the identification of gaps or weaknesses in the evidence, and attempts to fill or buttress them.

50. I do not accept that it is part of the Crown’s obligation to disclose how the police or persons within the ODPP went about identifying Ms Birchill. The Crown had disclosed the existence of the entirety of the body of electronic information which had been used to identify Ms Birchill. Her handwritten statement commences “Around 2012 I started going to boot camps being run by Scott EDWARDS. I learned about the class though a friend of mine” and the friend was named. She then said “I attended for a couple of years and it was called Sap[p]hire boxing & training”. The defence therefore were supplied with the names of at least one and probably two former clients of the appellant, and were well placed to obtain instructions regarding his recollection of them and indeed to review such accounting and taxation records as might exist to confirm the timing of her attendance. (Indeed, there is nothing to suggest that that did not occur.)

51. Nor do I accept that there was an obligation on the Crown to tell the defence (a) in general terms that the information extracted from the appellant’s own handset might be of utility to the defence, or (b) specifically, that there were numerous text messages between the appellant and another witness during the period specified in the indictment, such that that witness might be of interest to the defence. In the present case, it is readily seen from the text messages themselves that the witness was unlikely to be of great assistance to the defence, because her boys seem to have trained after school, and there is no suggestion of their training in the mornings. But even if that were not so, it was sufficient to disclose the existence of the body of material, and then it was for the appellant and his legal team to choose how if at all to deploy it.

52. Putting to one side a complaint that the late production of Lynn Birchill was contrary to ss 142 and 147 of the Criminal Procedure Act 1986 (NSW), the appellant’s submissions do not otherwise identify the source of the “duty of disclosure”, as applied to the Cellebrite download.

53. In part, the prosecutorial duty to provide documents and information to the defence is a product of statute. Section 141 of the Criminal Procedure Act, headed “Mandatory pre-trial disclosure”, requires inter alia the prosecutor to give notice of the prosecution case in accordance with s 142. Section 142 contains a list of 15 items which are required to be disclosed, including:

“(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, ...”

54. Further, s 15A of the Director of Public Prosecutions Act 1986 (NSW) provides that law enforcement officers investigating alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. Rule 87 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 provides that a prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person (in which case, the prosecutor must consider whether to withdraw the charge: r 88).

55. It will be seen that the duties imposed by statute are satisfied by disclosure, and fall short of requiring interrogation of a large body of electronic material if the entirety of that material has itself been disclosed and made available to the defence, or explanation of how such material was used to identify a Crown witness.

56. That is not an end to the analysis. Prosecutors are subject to guidelines, including “Guideline 18” which is headed “Disclosure” and which is summarised in Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [34]-[37]. But once again nothing in it suggests that it supports an obligation to give advice concerning the potential contents of electronic material made available, or advise as to how that material had been used to identify a witness in the Crown case.

57. I am prepared to proceed on the basis, favourable to the appellant, that statute does not cover the field. The provisions mentioned above reflect and overlap with the recently identified “duty” of disclosure, the history of which is traced in Marwan at [27]-[28] and Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48 at [124]-[125]. The latter decision noted that while generally the performance of the duty is a matter for the prosecution and the Court will not review it or enforce it outside the powers it exercises to control its own processes, if the duty was not complied with a prosecution could be stayed and, if a conviction ensues, it could be set aside if a miscarriage of justice is demonstrated: at [138]-[139]. The joint judgment concluded at [142]:

“Ultimately, the combined effect of Gould and the pre‑trial disclosure provisions of the CPA means that, with trials on indictment in this State, there should only be a relatively narrow scope for debate about compliance by the prosecution with its duty of disclosure and the means of enforcing it. That scope appears to be mostly confined to debates about the extent to which the prosecution must take steps, if any, to obtain information from other sources (as in Marwan) and cases such as this in which the material sought is the subject of claims for privilege or some other competing reason for non-disclosure.”

58. Enormous quantities of information in electronic form are regularly obtained in all litigation, including criminal proceedings. Search warrants permitting the seizure of computers and mobile phones are one example. Various forms of covert surveillance are another. It is not uncommon in certain classes of prosecution for the Crown brief to include very large quantities of information: see for example the sound recordings in Potier v R [2015] NSWCCA 130. I do not see how a line could be drawn if it were not sufficient merely to disclose the entirety of that material, but it were instead necessary to go further and interrogate those documents so as to draw to the attention of the accused especially unfavourable documents or potentially exculpatory documents. This would give rise to a panoply of problems. How is the prosecutor to determine which documents would assist, and which documents would detract from, the defence case? One person who spends an hour interrogating a database might conclude there was nothing useful, another who conducts different searches might reach a different conclusion, and a third who spends a day might conclude that in truth there was nothing that assisted either side. Further, the accused person may be taken to have a much better idea of any positive lines which are to be advanced in his or her defence than the prosecutor, and is much better placed to determine the significance of particular emails or text messages in a large electronic database. If it were necessary for the prosecutor to go further than disclosure, and to provide the sort of commentary about documents which are helpful or harmful, how is the sufficiency of the prosecutor’s endeavours to be tested, and how is the requirement that such work be undertaken compatible with the considerations as to time and cost noted in Marwan at [56]? And, most fundamentally of all, how is any of this consistent with the adversarial nature of litigation, and how is it necessary in order to achieve a fair trial?

59. True it is that in Grey v The Queen [2001] HCA 65; 75 ALJR 1708 at [23], the Crown had failed to disclose information about a witness which could not have been obtained by reasonable diligence and would only have been elicited by a “lucky (if extremely risky) question” in cross-examination, there was a miscarriage of justice which led to the quashing of a conviction. But that was a clear case of an (inadvertent) failure to disclose a particular document (a letter of comfort to a witness).

60. I do not accept that it was necessary for the Crown to do more than make available in electronic form the information extracted from the appellant’s own mobile handset. It cannot be the case that the Crown is obliged to hunt through what is apt to be an enormous quantity of electronic information in order to identify potentially exculpatory material, in circumstances where it has disclosed the material in its entirety, taken from the appellant’s own handset. Litigation is adversarial. In criminal proceedings, the Crown must prove its case, to the criminal standard, and following a fair trial. But it is not for the Crown, at least in any ordinary case, to second-guess or anticipate the ways in which materials disclosed by it might assist the defence. There may perhaps be exceptions to the foregoing general rule (one example might perhaps be certain criminal proceedings involving an unrepresented accused), but that is not the present case.

61. I accept the appellant’s submission that the complaint must be looked at in the whole, such that the late disclosure of Ms Birchill must be assessed in light of what occurred with the Cellebrite download material (cf Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [56]). The gravamen of the case sought to be advanced in this appeal is that had the Crown disclosed not merely that it proposed to call Ms Birchill and the evidence she was expected to give, but also that her identity and contact details had been found on the material extracted from the appellant’s handset, then the appellant would have been alerted to the fact that the handset could be mined for potentially useful information for the defence. I reject that case because where the entirety of the electronic information has been made available, and derives from the appellant’s own handset, the Crown need do nothing more. I also reject that case because even to this day, all that the appellant has done is to identify another potential witness whose evidence, if it had been adduced, is most unlikely to have affected the trial. In my view, nothing like a miscarriage of justice has been established.

62. While in my opinion there should be a grant of leave, this ground is not made out.

Ground 2

63. This ground was confined in its terms to the convictions on counts 6 and 7, the sexual assaults in the toilet block. Counsel for the appellant relied on the original written submissions, which had been signed by a solicitor and prepared prior to counsel being briefed. Those submissions made two broad points: that there was particular difficulty with the evidence bearing upon the toilet block and the key which the applicant was said to have had to open it, and more generally there were difficulties with the complainant’s reliability.

Evidence bearing upon the toilet block and the key

64. It was said and may be accepted that in order for the convictions on counts 6 and 7 to be maintained, “the jury needed to accept that the offending occurred in a male toilet located on the northern side of the amenities block, and that the Appellant had a key to the toilet”. Each aspect of this will be addressed in turn.

65. Concerning the toilet block, it was put that “the Complainant’s evidence about the changeroom toilet, coupled with a lack of evidence that the Appellant had a key to the room makes the convictions unreasonable”. It was said that the complainant’s evidence was incorrect as to the configuration of the toilet block and that “[t]he defence obtained a video of the inside of the toilet in question. The police and Crown did not. The [complainant’s] description of the toilet is incorrect”.

66. It was also said that:

“The Complainant said, ‘I can’t remember’ eight times to questions put to her by the Crown and sixteen times under cross examination. And ‘sorry’ three times to questions put to her by the Crown and eleven times under crossexamination. A total of twenty-four ‘I can’t remember’ and fourteen times ‘sorry’.”

67. Concerning the key, the appellant relied on evidence from an officer at the local council concerning the issue of keys. This evidence was a little unclear. It was clear from documents tendered that Mr Edwards had applied for a licence to operate as a personal fitness trainer on council parks and reserves in 2012, and had been invoiced for the $350 fee, but also that no licence was actually issued, and that an adjustment notice was sent reversing the fee. That notice, which became Exhibit F, stated “Booking didnt go ahead” [sic]. There was evidence that ordinarily a person who was licensed to use a council park would be given a key to the toilets that were connected to that park. There was also evidence that if a key had been issued, a record would have been made, and that no such record had been found on a search. However, this was elaborated thus in re-examination:

“Q. ... In relation to the key issue is it the case that you checked the record and there was a record indicating that there was no key or was it the case that you checked the records and there was no indication one way or the other whether or not a key was issued?

A. So the person who checked the record advised that we couldn’t confirm either way that a key had been – well, we had no record showing that a key [had] been issued or not issued. And whether or not it is a reflection on poor recording keeping, but it is what it is, yeah.

HER HONOUR:

Q. There is no record either way?

A. Correct.”

More general difficulties

68. Two more general difficulties with the convictions on counts 6 and 7 were pointed out in the appellant’s submissions. One was a difficulty in the complainant’s evidence that she was picked up at 4 am, that it was a short drive to Hudson Park, that the offending only lasted minutes, and yet the boot camps started at 6 am with people arriving within minutes after the offending occurred. The submissions noted that there would have been, on the complainant’s timing, an hour between the cessation of the offending and the arrival of boot camp participants.

69. Submissions were also made about inconsistencies in the complainant’s evidence concerning uncharged conduct at a neighbouring Westfield car park, which, according to the evidence of a security manager, would not have been unlocked at the time.

Consideration

70. The applicable principles were recently restated by this Court in Obierzynski v R [2019] NSWCCA 103 at [59]-[61]:

“When considering whether a verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is ‘whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’: Baden-Clay at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370.

In performing this ‘independent assessment’ of the evidence, this Court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M v The Queen at [7]. As the High Court said in Baden-Clay:

‘[65] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.’

See similarly Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; MFA at 624 and Atai v R [2014] NSWCCA 210 at [134].”

71. It was open to the jury to convict if it accepted the complainant’s evidence. The jury saw the complainant give evidence and being cross-examined. Ms Birchill’s recollection that the appellant had a key appears to have been firm, and she was not challenged on that evidence. The evidence concerning the absence of a key is equivocal, and indeed overstated in the appellant’s written submissions, and the jury was well placed to evaluate the testimonial evidence of the complainant and Ms Birchill as against what flowed from the documentary records maintained by the council. While I would accept that the key is an indispensable aspect of the Crown case on these two counts, I am unpersuaded that this aspect of the jury’s verdict is unreasonable.

72. The inconsistency in relation to the complainant’s recollection of the toilet block is also overstated in the appellant’s submissions; the video of the walk-through tendered by the defence was taken more than 5 years after the event, and it was not established that the block was in the same configuration in 2012.

73. More generally, the existence of inconsistencies and errors in the witnesses called by the Crown does not of itself make the verdict unreasonable. The complainant appears to have given firm evidence about the details of the sexual assaults, with additional details such as the appellant’s statement “We’re not blood relatives so it’s ok”. Likewise, the jury were also well placed to assess the evidence of complaint to the complainant’s cousin.

74. In short, making due allowance for the advantages enjoyed by the jury, which is the body entrusted with primary responsibility for determining guilt or innocence, I do not regard the verdicts on counts 6 and 7 as unreasonable. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

75. While once again there should be a grant of leave, this ground is not made out.

Orders

76. For those reasons, I propose that there be a grant of leave, but that the appeal be dismissed.

77. JOHNSON J: I agree with Leeming JA.

78. HARRISON J: I agree with Leeming JA.

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Decision last updated: 03 April 2020