Edwards v The Queen

[2021] HCATrans 89

[2021] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S235 of 2020

B e t w e e n -

SCOTT EDWARDS

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
KEANE J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 19 MAY 2021, AT 9.46 AM

Copyright in the High Court of Australia

MR J.M. MORRIS, SC:   Your Honours, I appear with my learned juniors, MR T.M. OWER and MR E.M. O’NEILL, for the appellant.  (instructed by Cardillo Gray Partners)

MR L.A. BABB, SC:   I appear for the respondent with MS J.E. DAVIDSON.  (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Morris.

MR MORRIS: Thank you, your Honour. The central issue in this case is whether the notification of the existence of a Cellebrite download of the mobile telephone of the accused was sufficient disclosure for the purpose of section 142 of the Criminal Procedure Act (NSW). The Court of Appeal found at paragraphs 58 and 61 that it was sufficient disclosure and that is the question which is to be determined by this Court.

Your Honours, the pre‑trial disclosure provisions were introduced in September 2013 and can be found at the joint book of authorities at page 40.  It is important to see at page 38 that this is part of Division 3 which were the case management provisions which were introduced into New South Wales to try to streamline or more efficiently manage the administration of criminal cases.  It sets out a number of provisions, including the provision for “Directions for conduct of proceedings” in section 136, section 140 “Pre‑trial conferences” and, importantly, we get to section 141 entitled “Mandatory pre‑trial disclosure”.

Now, the very terms of this legislation, when it comes to section 141 and section 142, which is prosecutor’s notice, is that the language is in mandatory terms. So, for instance, in 141(1):

After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required –

We say that is a mandatory term.  In subsection (a):

the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142 –

which is the prosecutor’s notice, and under section 142(1):

the prosecution’s notice is to contain the following –

Now, that, we say, is a critical word because it means to – the prosecutor’s notice actually has to incorporate the material which is set out at subsections (a) through to (m), and importantly in this case, we have section 142(1)(i):

a copy of any information, document or other thing provided by law enforcement officers to 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 –

and (k):

a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness -

and (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 ‑ ‑ ‑

EDELMAN J:   That contrasts with (j), which is a list.

MR MORRIS:   Yes, and (j) is important because there is an obligation on the prosecutor to identify ‑ if the prosecutor does not actually hold the information, the prosecutor has an obligation to identify where it is because we respectfully submit that this requirement is not just limited to the provision of evidence which may be sought to be tendered in evidence but also material which might properly put the accused on a course of inquiry so as to properly prepare the case for trial.

GLEESON J:   Is there any definition of the words “prosecution case” in 141(1)(a)?  It speaks about “notice of the prosecution case”.

MR MORRIS:    I do not believe there is, your Honour - if I might get back to you on that.  We would suggest that the reading would be the presentation of the material which the prosecution has in its possession and may intend to adduce or may not intend to adduce, depending on the circumstances of the case.  In fact, it is the material set out in 142(1) which is the important aspect, with respect.

There are some other provisions.  Section 143 requires a defence response to that material.  Section 144 sets out the “Prosecution response to the defence response” so you can see there is more to the obligation to provide this material.  Importantly, section 146 sets out “Sanctions for non‑compliance with pre‑trial disclosure requirements” in that evidence may not be capable of being admitted into evidence if it is not disclosed.  Expert evidence may be excluded.  There may be an adjournment.  Subsection (4), “Application of sanctions”, seems to be, essentially, the reservation of the trial judge to stay the proceedings until such time as the obligations have been complied with by the prosecutor.

The important thing about these provisions is that it does not contemplate the disclosure of material after verdict, which is what happened in this case.  In other words, there is no sanction set out in the Criminal Procedure Act regarding what is to happen if, after the jury has entered its verdict, this material comes to the attention of the defence.

Section 147 provides that the disclosure requirements are ongoing.  In other words, through the course of the trial the prosecution has an obligation to continue to disclose.  Section 148 provides that there is a reservation to the court to be able to waive the requirements for disclosure.  Section 149 sets out the formalities of the matter in that the notice must be in writing and properly delivered.  This is important – section 149A – if the:

proposed exhibit, document or thing . . . is impossible or impractical to provide a copy –

then the party giving them notice has got the obligation to identify its existence, identify whether it may be or where it may be inspected and to permit:

the other party to the proceedings a reasonable opportunity to inspect –

it. Now, that ties in as a corollary, we say, to section 142(1)(j) which was the issue which your Honour Justice Edelman identified.

KIEFEL CJ:   So how do you say it should have been provided – the Cellebrite download should have been provided in the present case?

MR MORRIS:   As in fact it was, which was on a USB or a hard drive.

KIEFEL CJ:   As it finally was?

MR MORRIS:   Yes, as it finally was.  We do not suggest ‑ ‑ ‑

EDELMAN J:   So, in this case there is no section 149A constraint because it was practicable to provide it in that way?

MR MORRIS:   Yes.  But the reason I draw it to your Honours’ attention is because it sets out a very clear formal obligation primarily on the prosecutor to at least engage with the material, because one of the issues is in the Court of Appeal.  It was said at paragraphs 58 and 61 the prosecutor does not have an obligation to interrogate this material on the Cellebrite.  There is a vast amount of paper there.  There are 6,000‑odd pages – 5,900 pages.  The prosecutor does not have an obligation to interrogate the  material and then provide extracts of it to the defence as to what may or may not be relevant.

Now, that does not form part of our case here.  We agree with the Court of Appeal, there is no obligation on the prosecutor to sift through and identify what may or may not be relevant and provide an advice on evidence to the defence.  That could not be part of the statutory obligation. 

What we say, though, is there is an obligation to engage with the material to a sufficient extent so as to be able to answer the binary issue - do we have to disclose, or do we not have to disclose?  If the decision is reached that disclosure is required, then the material is provided to the defence, and it is up to the defence to do with that material what they will.

Now, they may choose to issue subpoena - well, firstly, they may not choose to read it, but we are assuming they are reasonably competent and they are going to read the material, and it may well put them on a course of inquiry leading to trying to identify the witnesses, issuing subpoena, undertaking various inquiries and searches that might be available on social media, attending to any number of the sort of investigations which one might readily expect somebody, a competent practitioner would do, to be able to either undermine the prosecution case or bolster the defence case.

STEWARD J:   On that basis, was the obligation, in terms of disclosure of information, was it the whole of the data, or was it only that data which enabled the prosecution to identify the witness and matters pertaining to that witness?

MR MORRIS:   We would say that it is the whole of the data, your Honour.  You provide the whole of the download.  The reason for that is, forensically, there may be an equal importance arising from the absence of material on a Cellebrite download as the existence of material on a Cellebrite download.

STEWARD J:   What is it about the balance of that data that would have triggered the obligation of disclosure?  You said it has to be - you have to investigate sufficiently to know whether you have an obligation to disclose.  Perhaps one can see that about information relating to the witness.  Why would they need to disclose the balance if they have found - gone through it and found it not to be of use?

MR MORRIS:   Well, you see, that is the point, because – and I do not mean to be – you see, in this case, for instance, it may be that – I am sorry.  We are dealing with a mobile telephone, which was the repository of a great deal of information.  The information contained on a mobile phone is extraordinary:  GPS material, photographs, emails, texts, telephone calls, so on and so forth.  So, when you have a complainant in a trial such as this, and you have the accused, the presence or absence of information contained on the Cellebrite download may be equally as important. 

In other words, for instance, in this case, we have the Crown case that the accused sent the complainant a text suggesting to her that she delete her internet history because she had been looking at pornography, and it had come to his attention that she had been looking at pornography.

There is no dispute that she had been looking at pornography.  There is no dispute that it had come to the attention of at least the wife of the accused and there was evidence given by her that it was an issue.  The way the Crown seemed to introduce that evidence is to reveal the exploitation by the accused of the growing sexual awareness of the complainant. 

Now, the Cellebrite download demonstrated that there was no such text.  The Crown would say against us, well, as they did in the Court of Criminal Appeal, simply because there was no text revealed on the Cellebrite download does not address the question of whether the text had existed and had been deleted.  In other words, simply because there is no text does not mean that it does not establish it did not exist.  Well, this is where a line of inquiry may have come to pass, in my respectful submission because Constable Rowe was the man who downloaded the mobile telephone and he could have been called for cross‑examination as to the extent to which the police had interrogated the Cellebrite download to determine whether it recorded not only texts that were preserved but texts that had been deleted.

EDELMAN J:   Could the Cellebrite download be searched?

MR MORRIS:   It can be searched but it may have given rise to another inquiry which is a search of the mobile telephone itself.  In other words, the Cellebrite captures a particular amount of information but there is the opportunity to go back to the mobile telephone and further interrogate it with respect to deleted files and so forth.

EDELMAN J:   Does the Cellebrite download contain GPS information as well?

MR MORRIS:   Yes, it does, it does.  For instance, in this case, there was GPS information that established that for a two‑week period during the period of offending, the accused – it was about the six‑week period in which the offences could have taken place - was in Queensland.  He was off at a boxing jamboree or whatever you might call it – boxing competition.

EDELMAN J:   Was that evidence before the Court of Appeal, or are you saying that based upon your examination of the download?

MR MORRIS:   Certainly, it was – there was an affidavit of the solicitor and there was an affidavit of Mr Pascoe, most of which had been excluded in the Court of Appeal.  So, that is my hesitation.  But the material which was appended to the affidavit indicated that he had been away for a two‑week period and I do not think it is in dispute.  If it is, I am sure my friend will correct me.

GLEESON J:   Mr Morris, when did the duty to provide the Cellebrite download arise?  Was it at the time that the prosecutor’s notice was provided, or was it when Ms Birchill’s statement was provided at some other time?

MR MORRIS:   The last time, we say – given there is an obligation of ongoing disclosure we say that - primarily, the Cellebrite should have been disclosed at the time of the prosecutor’s notice.  That is the first thing.  The second time was the time at which it was actually deployed by the prosecutor in order to obtain the identity of Ms Birchill.  That is a critically important event because Ms Birchill had married since the time of the offences.  When her statement was provided, she was presented as “Birchill”.  When her evidence was given, she was presented as “Birchill”.  During the Crown address, defence address and the summing‑up, she was presented as “Birchill”. 

During the correspondence at about 18 May, which was before the verdict, the solicitor was rightly asking how was it that you found “Birchill”?  What then happened was the Cellebrite download was provided and that is when the identity of Ms Birchill was linked to Ms Mullens who was the client of the accused who says she had trained at Hudson Park during the relevant period of offending. 

It is that information which is so critically important for the forensic investigations to be undertaken by the defence team because it is at that time that they are able to undertake inquiries – not only in relation to Lynn Birchill – but also Lynn Mullens, which was her name at the time of offending.

EDELMAN J:   Did her witness statement that was provided to the defence not have her unmarried name?

MR MORRIS:   No.  No, it did not.  It was not in the statement.  It was not in her evidence.  As I said, it was not in the summing‑up.  It was not until the Cellebrite download was given that the identity could be established.  Then the question is, so what?  My friend has referred to it in his submissions.  The fact is it is at that time that the defence team has the capacity to identify relationships between the various witnesses within the Crown case. 

To that extent, Lynn Birchill was presented in terms of evidence but, in particular, in Crown summing-up and it was accepted by the defence – I am sorry, in the Crown address, the defence address and the summing‑up – that she was an independent witness.  I think the term was, “she appeared to be a pretty independent sort of witness”.

One of the issues in any case like this is the opportunity for pollution of evidence, which does not go to credibility; it goes to reliability, the opportunity that, over much discussion or gossip or communications, could give rise to errors being made by relevant witnesses.  In this case, a Facebook search would reveal that Lynn Mullen had a daughter who was at the same school and friends with [name redacted], who was the cousin of the complainant, to whom she complained, and also the complainant herself.

In that regard, and coming back to your Honour Justice Gleeson’s question, the disclosure, if it was not made at the time of the section 142 notice, was certainly required by the time of the service of the statement of Lynn Birchill, which was the Friday before the trial commenced.

Had that been the case, then the defence would almost certainly have called for an adjournment because it took the solicitor about a week to work out the very basics of this material.  Obviously enough, there is a great deal of material, but it has the potential to change the manner in which the defence approached the Crown witnesses, the defence strategy, who they may seek to call and so on and so forth.  Those issues feed into the proviso, of course, which will apply in this case.

We got a little bit side‑tracked, but I should point out, returning to the legislation, section 149B there is an exemption for matters previously disclosed. This material was not disclosed at committal and there is no suggestion that it had previously been disclosed by the Crown so as to give rise to that exemption. One can understand the good reason why it is that you would have that carve‑out, as it were, because it would otherwise give rise to a formality impeding the efficient running of the trial if, for instance, the prosecutor had accidently failed to notify something under the section 142 notice but it had previously been in the possession of the accused at some earlier point in time, like at the committal. So, the point is that section 142, we submit, provides a mandatory requirement for disclosure.

EDELMAN J:   Mr Morris, in the section 143 defence response, did the defence respond with any claim under 143(1)(c) that there would be a dispute as to location?  In other words, whether there was an alibi or an allegation that nothing happened at Hudson Park, or that he was not at Hudson Park?

MR MORRIS:   As to the defence response, I do not know, to be frank.

EDELMAN J:   At trial, was it an issue, whether he was present at Hudson Park?

MR MORRIS:   Yes, it was, and that is why Lynn Birchill’s evidence was so important.

EDELMAN J:   Well, surely the GPS evidence would have been even more important.

MR MORRIS:   Such GPS evidence as we had did not have an attendance at Hudson Park during the period of offending, but, of course, the GPS evidence is triggered by the taking of photographs and so forth.  But there would be the opportunity to – that would be a potential issue.  But Lynn – when the accused was subjected to his interview, recorded interview, he said, well, the training I did was either at home or at Alder Park, which was just down the street, and the police said to him, well, what about Hudson Park, and he said, not that I am aware of.

And that is why it is that Lynn Birchill was so important to the Crown case, because the second series of charges brought against the accused was, according to the complainant, it took place in the male toilet at Hudson Park, and that the accused had a key to the toilet block there.  The accused said, well, I did not have a key, and the evidence from the council, which was adduced at trial, indicated that, while he had made application to carry on training at Hudson Park, the application never proceeded, and had the application proceeded he would have been given a key, but if the application did not proceed, he would not have been given a key.

The issue there is that Lynn Birchill came along and gave evidence, well, I trained with him, either in 2012 or 2013, she could not be sure, she was not precisely sure, which nobody criticises her for that, but she says, I needed to go to the loo one day, and the accused produced a key for the toilet block at Hudson Park.  And that is why she was such a critical witness for the prosecution case, and that is why she was presented as an independent witness.

So the other matter, which is a matter of history, is that prior to these amendments there had been a requirement on the police to disclose under section 15A of the Director of Public Prosecutions Act, but otherwise in New South Wales we were dealing with the application of the English common law principles, and one of the issues that had arisen in some of the cases of the Court of Criminal Appeal about the period of 2004 were a series of cases which was really trying to address the recurring issue of whether the disclosure was sufficient by making reference to the existence of a document or thing and that competing obligation of the accused to fossick around for information which may have been available and that had been disclosed, and to that extent the case of Livingstone which is referred to in the authorities book in the third volume and is to be found at page 961, Justice Simpson was addressing – that was a section 15A issue.

KIEFEL CJ:   I am sorry, Mr Morris, what was the case to which you referred?

MR MORRIS:  I am sorry, your Honour, I have mucked this up.  It was Livingstone at 961. 

EDELMAN J:   Do you know which tab that is?

MR MORRIS:  I am sorry, I have tab D2.

KEANE J:   I think it is 39.

MR MORRIS:   Tab 39, yes, thank you.  Now, this is the case of Livingstone 150 A Crim R and for the purpose of this I would take you to the court tabulated page number at 960 and at paragraph 53 this relates to a particular interview with a fellow called McPhee.  The issue was described at paragraph 53:

Was it –

the prosecution:

obliged to do more than provide the material from which a reasonably astute lawyer could have inferred the existence of the records and sought them out? 

At 57, the debate goes on:

I have already stated my view that the information was information that should have been disclosed.  It is, in my opinion, a fine question whether what it is now suggested the appellant’s legal advisors should have done involves “fossicking” –

to which reference was made to Reardon and so forth.  The debate goes on on that page.  What was happening was the court was grappling with a situation where sufficient information may have disclosed the existence of a particular interview and the existence of a particular statement, but the statement itself had not actually been disclosed.  In that case, the Crown was saying, well, there was enough there for the defence to work out that there might have been something and basically we did enough by alerting them to the existence of the information.

Then, we go to the case of Lipton 82 NSWLR 123 and it is to be found in the Court book at page 914. This was, as I said, a case pursuant to 15A of the Director of Public Prosecutions Act which then raised this same sort of debate as to whether the mere disclosure of the existence of a document was sufficient to discharge the obligation of disclosure. 

One of the issues, which goes without saying, but at page 937 at paragraph 77 of the judgment there is reference made to the R v Reardon (No 2) in which the – and reference in that case is made to Cannon v Tahche (2002) 5 VR 317 about the fact that this obligation of the prosecutor is not a private obligation owed to the defence but it is an obligation owed to the court.

It is not an obligation which is enforceable at the insistence of the accused.  It is about the obligation of the court and the innate obligation of the Crown Prosecutor to ensure the proper procedural steps are taken to ensure that the accused obtains the trial to which he is entitled to and that picks up the decision of – as a matter of principle it picks up the decision of Justice Fullagar in Mraz which says that the issue is did the accused obtain the trial to which he was entitled at law which is proper advice from the judge to the jury on the effect of the evidence, proper admission of evidence and the proper procedure that has to be followed.

So, the issue of pre‑trial disclosure prior to the introduction of section 142 had been the subject of statute by the time of Lipton’s Case. There is the interesting observation – which really summarises our case in this Court – and that is the observations of Justice Hulme at paragraph 124 of his judgment – which is to be found in the Court book at page 947 – and his reference to section 15A of the Director of Public Prosecutions Act.  He says at 124:

While I can accept that it is possible to disclose a document, that is, its existence, without revealing all the details of its contents, I do not see how it is possible to disclose “all relevant information” without revealing the content of that information, including the content of any documents.  And while it may be that from time to time there is information that the police, with perfectly proper motives, do not wish to disclose, at least in detail, to the DPP (and the DPP may wish not to see), Parliament has dictated what must occur.  If the result is inconvenient, it is a matter for Parliament to change.

We say that that very neatly encapsulates the conflict that is before this Court and it encapsulates the error which took place in the Court of Appeal at paragraphs 58 through to 61where Justice Leeming found that there was no duty to interrogate and that the disclosure of the existence of the Cellebrite download was a sufficient discharge of the obligation of disclosure. It is an observation that Justice Leeming did not take himself – we presume he did but he did not refer – to the words of section 142(1) where it sets out that the obligation of:

the prosecution’s notice is to contain ‑ ‑ ‑

STEWARD J:   What do you say about the juxtaposition in 149D(2) of the concepts of provision as against disclosure?

MR MORRIS:   Section 149D ‑ ‑ ‑

STEWARD J:   Subsection (2):

anything that has already been provided or disclosed –

Does “disclosure” there simply mean – or does it include disclosure in a list or a document of a thing?

MR MORRIS:   I am sorry, your Honour, 149D(2) relates to the accused person ‑ ‑ ‑

STEWARD J:   I see, yes.

MR MORRIS:   ‑ ‑ ‑ rather than the prosecutor.

STEWARD J:   But does the juxtaposition of “provision” and “disclosure” suggest that “disclosure” should be read as simply disclosure in a list with provision being that which is given – the information?  

MR MORRIS:   No, no.  Our submission is that under 142 it is not just the provision of a list of material set out in 142(1)(a) through (m), I think, but it is the actual provision of the material.

EDELMAN J:   Well, it will depend, will it not?  I mean, in some contexts, the word “disclosure” might mean no more than disclosure of the existence of, and in other contexts, disclosure may mean disclosure not merely of the existence of, but of the contents of, in which case, one could only do that by providing.

MR MORRIS: If the material falls within the provision of section 142(1)(i), and assuming it is not inconvenient to provide it, then the prosecutor has to provide it. If it is inconvenient to provide it, then the prosecutor can rely on section 149A, tell them what it is, tell the defence what it is and where it is and how it can be inspected, and provide sufficient time for that to take place. But once the prosecutor has decided that the material is of a nature, in section 142(1)(i), or (k) or (l), then the obligation is to provide it, and it is expressed in mandatory terms.

One of the issues about that, which we tease out in our written submissions, is when you have got a rule like this, requiring the provision of the material, the provision of the underlying evidence, the Cellebrite download, and its existence is revealed through the statement of Constable Rowe but it is not provided, then the defence is entitled to assume that it is not relevant, it does not fall within any of the provisions of the prosecutor’s notice, and so they can dispense with any further thought about it.

If you have a situation, with respect, where you have got a mandatory provision like this and a practice develops where a discretion emerges in the prosecuting authorities to say, well, it might be relevant but I am not going to disclose it, it gives rise to the worst situation where you have got a system that requires mandatory notice, and you have got a practice that develops that indicates it is discretionary, without revealing to the defence that that is what is going on and you can end up in a worse situation, in terms of injustice, and the failure of an accused to get the trial to which he or she is entitled at law.  That is a very real, practical consideration.

The other thing is, of course, that the Court of Appeal accepted that the Cellebrite download had not been disclosed and there were these comments made in there saying, well, really the accused was not at any disadvantage because, after all, it was his phone and he ought to know what was on it.  That is not a proposition that would withstand scrutiny, with respect, because I think that the amount of material that is contained on the Cellebrite download would surprise anybody as to the detail and it certainly would not necessarily be obvious to the accused. 

Secondly, he had been in custody from the time of his arrest and his mobile phone had been seized by the police and held by the police.  Thirdly, I challenge anybody to be able to recognise what was on their mobile telephone in terms of texts or emails 12 months ago, let alone five years before.  It is just, with respect, a proposition that cannot withstand careful scrutiny.

KIEFEL CJ:   But if an accused person tells his solicitor that the police have taken his mobile handset, presumably they can undertake the same processes as the police did, but this goes to the point of substantial miscarriage of justice, does it not?

MR MORRIS:   Yes, that is right.  There is no doubt that that possibility was there and that must have been his instructions to his solicitor, “my phone was seized,” and the solicitor had that opportunity, but when you have the disclosure of the existence of a Cellebrite download but not its service, you end up in the problem.

KIEFEL CJ:   These are separate questions:  the statutory duty and the substantial miscarriage.

MR MORRIS:   Yes.  The other thing is – and we have set it out in our written submissions – these days when one has such prevalent use of electronic communications with the mobile telephone, in a case where you have a suggestion or an allegation raised by the Crown of electronic communications between a complainant and an accused, one would have thought that the default position would be that such material by default, one way or another, ought to be disclosed.

If the phone has been taken by police and examined, it would almost be, in my respectful submission, par for the course that that would be served.  Reardon’s Case was a case in which the police running sheets were not disclosed and Justice Simpson said, “In the course of an investigation, one would have thought that the character of the document that we are dealing with, a running sheet, ought to be disclosed almost automatically”.  There is a presumption that it ought to be disclosed.  We say that this is a case where the very same presumption is very, very strongly present.

GLEESON J:   Are you saying that if part of the case, or part of the evidence in the prosecution case, is that a text was sent by the accused, then there must be a disclosure of any evidence which might suggest that that was not sent?

MR MORRIS:   Yes, or a very, very high presumption that it would fall within the obligation to disclose, almost inescapable, in my respectful submission.  I am not sure that I can say anything more about the obligation to disclose and the breach that we say took place in this case.

KIEFEL CJ:   Are you going to move to substantial miscarriage now?

MR MORRIS:   Yes.  The issue was raised against us that we cannot establish the proviso and we say ‑ ‑ ‑

EDELMAN J:   The onus for the proviso is on the prosecution, not the appellant.

MR MORRIS:   It is a term that really comes down to those observations of Justice Fullagar in Mraz, picked up by Grey, Mallard and those cases, which is did the accused obtain a trial to which he was entitled at law?  Now, this is a pre‑trial procedure which has been introduced into New South Wales as a mandatory statutory thing and we say it is just as relevant, in my respectful submission, as a direction to the jury, just as relevant to the issue of proper admission of evidence before the jury, and just as important as various trial procedures.  It forms part and parcel of the criminal justice process, and so much is clear from the statute.

To that extent, the role of the defence includes the capacity to create doubt, the capacity to create doubt about the evidence of witnesses.  In my respectful submission, one of the strategies which would have been deployed had the Cellebrite download been disclosed was the identification that there was no text sent by the accused to the complainant.  She gave evidence that she received a text from him.

KIEFEL CJ:   But presumably the accused told his solicitors that no such text had been sent?  Presumably he gave instructions.

MR MORRIS:   That may or may not be a presumption which is available, and can I say why?  There is no doubt that the complainant was 13 years of age, and she had accessed pornography on her computer.  It was a situation which had generated a degree of discussion amongst the family members - what do we do about this, how do we deal with this?  [Name redacted], who was the wife of the accused, says that she spoke about it, and Scott Edwards spoke ‑ ‑ ‑ 

KIEFEL CJ:   Well, I think you keep names out.

MR MORRIS:   I am sorry, yes.

KIEFEL CJ:   They will be expunged.

MR MORRIS:   The fact is the husband and wife – it became a matter of discussion.  Now, these were events that took place five years before, so while he may have acknowledged that there was a discussion and an issue about it, he may not have had a recollection as to what he actually did about it.  In other words, he may not have had the positive recollection.  But we are talking about the defence, the defendant’s – the representatives of the accused. 

The complainant was unable to produce a copy of the text, the prosecution could not produce a copy of the text.  The absence of it on the Cellebrite download would give rise to the opportunity to positively put that such a text did not exist.

EDELMAN J:   Well, presumably it would be an agreed fact between the prosecution and the defence prior to trial - if both had examined the Cellebrite download, there would be an agreed fact that would be read to the jury that over the entire course of the relevant events no text was found to have been sent from a mobile phone.

MR MORRIS:   Except we never got to that stage.

KIEFEL CJ:   But why could not the defence have downloaded it and checked it anyway?  The same technology is available to the defence.

MR MORRIS:   Because the police had the mobile phone.

KIEFEL CJ:   Surely they could have asked for it – if the accused had said that there was no such text, and they knew that the police were investigating their phone, they could take some steps themselves.

MR MORRIS:   Well that is the – you see, the point is we are looking at the disclosure of the Cellebrite, and so it was the disclosure of its existence, but not the provision of the material.

STEWARD J:   Was it accepted that the phone seized was the phone that your client had during the time of offending?

MR MORRIS:   I do not think it was accepted that that was his position.  In other words, that was his position, he has only had one phone, but I do not think it was accepted by the Crown.

EDELMAN J:   Well, there were 58,000 texts on it, so one can infer that it had been used fairly regularly.

MR MORRIS:   The communications that were on it preceded the period of offending, and we are really looking for an eight‑week period or maybe 12‑week period.  But the point about it is that ‑ ‑ ‑

KIEFEL CJ:   Was the fact that no text had been sent put to the complainant in evidence – in cross‑examination?

MR MORRIS:   No, it was not.  I do not think it was. 

KIEFEL CJ:   It does not seem to have loomed large for the defence at trial.

MR MORRIS:   The point about it is that had – the submission I make is, had the Cellebrite download been provided, it would have been established that there was no such text and it could have been put with a great deal of confidence.  I think it was in Grey’s Case where one has to take into account the fact that as defence counsel one needs to tread carefully in the putting of particular propositions and depending on the background information you have on a particular topic affects the extent to which you might press a topic of cross‑examination or not. 

The Crown will suggest, well, this text could have been deleted and did not appear, but the point about that is that that would have given rise, in my respectful submission, to a cross‑examination of the constable who performed the download and the steps he had taken to interrogate the material and actually identify firstly, had it ever existed, secondly, whether it actually turned up in a deleted file and, thirdly, whether it could be recovered or not. 

Now, the fact is that it would not be for the defence to establish – the defence could have proceeded on the basis that the Cellebrite download did not reveal – performed by the police did not reveal any such text.

KIEFEL CJ:   Now, your submissions are proceeding upon the assumption that the Cellebrite download discloses that no text was shown – that no text was sent.  There is no evidence of any text having been sent?

MR MORRIS:   Can I just feed that back so that I properly understand your Honour’s proposition?  That the Cellebrite download did not record any text having been sent, yes.

KIEFEL CJ:   Yes, and what is the evidence of that?  What was the evidence before the Court of Criminal Appeal?

MR MORRIS:   I think it was an accepted fact before the Court of Appeal ‑ ‑ ‑

KIEFEL CJ:   Was it?

MR MORRIS:   I think – well, certainly in the course of argument there was the debate about whether the absence of the SMS on the Cellebrite download ‑ ‑ ‑

KIEFEL CJ:   Could have been made out by reference to the download?

MR MORRIS:   Yes, but the – one of the problems that the accused ‑ ‑ ‑

KIEFEL CJ:   Well, presumably, if the accused’s solicitors had gone through the downloaded material they would have been in the position to put on evidence to say ‑ ‑ ‑

MR MORRIS:   That evidence was put on by a Mr Pascoe, but it was excluded because it was found that he did not have the relevant expertise.

KIEFEL CJ:   I see.

MR MORRIS:   His affidavit is to be found in the further bundle of material.  So, it was excluded on the basis of his expertise to actually perform the download.  The other issue with respect to the proviso – I have already addressed it in some detail but I wish to address it on this point – is that the relationship between the independent witness, her daughter, the cousins to whom the complainant had complained and the complainant, that there was that relationship and that was the opportunity for the defence to be able to not so much challenge the credibility but also the reliability and explore the opportunity in front of the jury that there had been discussion which may have polluted people’s recollections and so undermined the evidence given by Birchill, who was being described as independent. 

She was advanced as independent and you could have advanced the proposition that the independence was not established and, for those reasons, we advance before this Court that in this case there was a miscarriage.  Your Honours, we otherwise rely on our note and also our written submissions, but unless there is anything from your Honours, I do not think there is anything I can add.

KIEFEL CJ:   Yes, thank you, Mr Morris.  Yes, Mr  Babb.

MR BABB:   Your Honours, this appeal concerns not the scope of the duty of disclosure but the form of disclosure that took place in this case in circumstances where the Court of Criminal Appeal did 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. 

The existence of the Cellebrite download was disclosed multiple times to the accused and his legal team – if I can take your Honours briefly through that – and it was available for obtaining by the appellant’s legal team at all times.

If I could take your Honours, firstly, to the appellant’s further materials at 276?  On 16 April, a solicitor of the office of the Director of Public Prosecutions sent an email to the solicitor for the appellant with the notice of the prosecution case in the trial that was upcoming on 14 May.  The brief index was included as annexure C to the notice of prosecution case.  The brief index is at 289.  At point 2, it lists the:

Hard‑Drive containing:

a)        Phone Download Report –

and specifies the phone. 

EDELMAN J:   Sorry, what page was that?

MR BABB:   That is page 289 of the appellant’s further materials.  In an email – which is at 274 of the appellant’s further materials – that shows the service of the index with the “Notice of Prosecution Case” – the lawyers were asked – and you can see in each of these emails, your Honours, that it is sent to both the solicitor and counsel appearing for the appellant – whether they also appear in a further matter that was listed for trial on 28 May and the solicitors responded confirming that they did.  On 17 April, a notice of prosecution case was sent in that further matter.  That also contained the hard drive.

KIEFEL CJ:   Where is that, Mr Babb?

MR BABB:   That is in the respondent’s further materials, your Honour.
Excuse me for one moment. That is at 187 of the respondent’s further materials, and it is item No 20 in that schedule. You will see that there is a reference to the same phone, the same identifier. In the email that was sent in relation to that schedule, at 182 of the respondent’s further materials, you can see that the solicitor said:

“Please let me know if there are any brief items at Annexure C that you don’t have.”

On 3 May, the solicitor Max Dixon of the Office of the Director of Public Prosecutions sent an email to the solicitor, or the legal team for the appellant:

enclosing three new statements and an updated Crown brief –

in relation to the matter before this Court, and also noted:

“If there are any outstanding items, please let me know as a matter of urgency and I will provide these items to you”.

EDELMAN J:   At 192.

MR BABB:   Thank you, 192 of the respondent’s further materials, and it is the third paragraph in that letter.  If you turn over the page, also accompanying that letter was, on the schedule, the:

Hard‑Drive containing Cellebrite –

last item on the schedule.  A proposed witness list was supplied to the appellant’s solicitor on 8 May 2018, and this is in the appellant’s further materials at page 294.  Your Honours will see that the prosecution have set out the witnesses they are intending to call and those that are not required.

The email at 292 that forwarded that list asks for consideration of the list by the appellant’s legal team and “whether you require the witnesses marked ‘not required’” and let that be known at their convenience and Michael Rowe and the relevance of the Cellebrite download is noted in that proposed witness list.

Now, a question was asked about whether the accused would not have notified his legal team that his phone had been seized.  That in fact was not necessary because it formed part of the statement served at committal and the first of those statements was the statement of Detective Pacey, which is able to found at the respondent’s further materials at page 17, paragraph 20, and the fact that a Cellebrite download was prepared in relation to that phone was disclosed at the time of the committal in 2017 in the statement of Senior Constable Rowe which is found at page 195 of the respondent’s further material.

EDELMAN J:   In the statement that you have just taken us to from Mr Edwards, or Detective Senior Constable ‑ ‑ ‑

MR BABB:   Pacey.

EDELMAN J:   At paragraph 20 and then 21 there is a statement:

I NOW PRODUCE MOBILE PHONE BELONGING TO EDWARDS –

Was that produced, or is that a statement as to what was intended to happen at trial at the time?

MR BABB:   That is a common form of people at the time of making their statements, referring to what they have available to them.

EDELMAN J:   It was what was intended to be done at trial?  It was intended to be produced at trial?

MR BABB: No, not so, your Honour, and I will take your Honour to this because at the time section 75 of the Criminal Procedure Act required only disclosure of written statements that had been collected and those matters proposed as exhibits in the trial.

KIEFEL CJ:   Is this by way of identifying that the person has in their possession ‑ ‑ ‑

MR BABB:   Has in their possession the telephone.

KIEFEL CJ:   That might be a convenient time for the morning break, Mr Babb.

MR BABB:   May it please the Court.

AT 11.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

KIEFEL CJ:   Mr Babb, could we just go back to the references in the brief indexes to the phone?

MR BABB:   Yes, your Honour.

KIEFEL CJ:   I am looking at the respondent’s further material 289, I think that is one of the brief indices, hard drive containing phone download report of what could be identified in the number, I take it, as being the accused’s phone.

MR BABB:   Yes, your Honour.

KIEFEL CJ:   So, phone download report later becomes, in the proposed witness list at 294 “Cellebrite download” but a phone download could only be put on a USB stick so “download” do we take to equal USB stick?

MR BABB:   So, it would have had to have been a hard drive, your Honour, it is too much for a USB stick and it needed to be on a larger device, a hard drive.

KIEFEL CJ:    Because of the sheer quantity of it?

MR BABB:   Sheer quantity, yes.

KIEFEL CJ:   So, we are looking for a hard drive.  Is the hard drive – if you were applying the statute on your argument, is the hard drive a “thing” which is disclosed according to those documents?

MR BABB:   Yes, it is, it is disclosed because the existence of it was palpably disclosed and the offer was there to make it available.

KIEFEL CJ:   So, it is on a list identifying a download as a “thing” is your argument in 142(1)(j)?

MR BABB:   Except (1)(j) is not really the relevant provision, your Honour, because it was something that was in the prosecution’s possession.

KIEFEL CJ:   I see, yes, of course.  So, it is (i).

MR BABB:   Yes, so we are out of (1)(j) and we are in (i).

KIEFEL CJ:   We are in (i).  I am sorry, I have got the wrong subparagraph.  So, it is a thing provided ‑ ‑ ‑

MR BABB:   By law enforcement officers to the prosecutor which we accept occurred.

EDELMAN J:   So, you effectively read 142(1)(i) as though it said a list of any information, document or things that are provided rather than an actual copy of those things.

KIEFEL CJ:   I think I put those words in Mr Babb’s mouth by misreading the subparagraph.

GLEESON J:   I thought what – no doubt Mr Babb will say – but I thought what Mr Babb was saying was that he falls within the exclusion in (i) ‑ ‑ ‑

MR BABB:   Yes.

GLEESON J:   ‑ ‑ ‑ that has not otherwise been disclosed.

MR BABB:   Exactly, (i) has a carve‑out for things that have otherwise been disclosed and this was clearly disclosed, and I will take your Honours through the common law in relation to disclosure which includes disclosure of the existence of a thing, where it is clearly disclosed, where what it is is able to be ascertained  ‑and that is clear here where it was the appellant’s own phone – and where it would be made available for either inspection or, in this case, an offer for it to be provided.

KIEFEL CJ:   So, you say disclosed by any means; it is not disclosed otherwise in accordance with this section?

MR BABB:   It is previously disclosed.

KIEFEL CJ:   Previously disclosed.

MR BABB:   Yes, by any means.

EDELMAN J:   The disclosure relates to both the thing and the information on the thing or only to the thing?  The prosecution did not disclose all of the contents.

MR BABB:   No, that was never provided, that we have disclosed the existence of the thing which was the download of the appellant’s phone.

GLEESON J:   Why would not that carve‑out relate to things that are not otherwise disclosed in accordance with the Act?

MR BABB:   I am not sure I understand your Honour’s question.

GLEESON J:   Why would not disclosure in that context, the word “disclosed”, refer to disclosure under this Act?

MR BABB:   This Act does not require provision of material.  The word “disclosure” is not defined in the Act.

GLEESON J:   There is a requirement to disclose in the disclosure in the brief of evidence in section 62.

MR BABB:  Section 62 does not apply to this case because section 62 was a section that relates only to committal proceedings. A brief of evidence is a term for something that has to be provided at the committal stage and there was another section, section 75, that was in force at the time of the committal on 11 October 2017. It is unfortunately not in the materials, but I can hand a copy to your Honours of section 75, which is in different terms to section 62.

EDELMAN J:   If the prosecution had, for example, a number of relevant emails that bore on a material issue in the case, it would not be sufficient, would it, for the prosecution to provide notice to the accused person that they have those emails without providing the information in the emails themselves?

MR BABB:   No, the essence of disclosure is fairness in the particular case.  So, that concept of “not otherwise disclosed” is something that needs to be looked at in a particular case.  In this case, we say that the appellant knew his phone had been seized, knew that a download of the material had taken place and knew that it would be made available at any time and we say that that means that the material has been otherwise disclosed.

KIEFEL CJ:  Is there an alternative argument that if you were obliged by 142(1)(i) to provide a copy of the download – the hard drive – that 149(8) applies or, because it is a hard drive, you cannot really say it is impractical, so you do not rely upon that.

MR BABB:   I would not rely upon that.

KIEFEL CJ:   Okay.  So, it is the carve‑out.

MR BABB:   It is the carve‑out.

KIEFEL CJ:   Yes, right.

MR BABB: It is the carve‑out. If I could take your Honours to section 75 which was the ‑ ‑ ‑

EDELMAN J:   Just before you do, I just want to understand how – you say the carve‑out applies, I understand, to “the other thing”, “the other thing” being the hard drive, but how does the carve‑out apply to the information when the information has not itself been disclosed, the information being all of the contents on the hard drive.

MR BABB:   Those contents were the contents of this accused’s phone.  The legal team, knowing that the Cellebrite was available, knew that the information that was on the phone, information that they could take instructions from their client about, was available.

EDELMAN J:   You are not suggesting that they knew the information – the contents – of 58,000 texts over seven years.

MR BABB:   No, that material really does not meet the test for relevance.

EDELMAN J:   None of it does.  There is nothing in there that meets the test for relevance.

MR BABB:   The things that my friend has pointed to are – they are different to what was pointed to in the Court of Criminal Appeal.  There, the argument was that some texts about a person, Libby Elliot, were relevant.  The only things pointed to in this Court are the fact that it was unable to be discovered that there was any text message sent from that phone to the complainant about deleting pornographic material. 

There are two points to be made about that.  One, it was not a matter of any moment in the trial.  The evidence of the wife of the appellant was that they had discussed it, they were concerned, and there had been some communication about the material, and significantly, it was never put to the complainant that that text message had not been sent.  That is in contrast to other communications where it was put to the complainant that they did not happen.  It was put to the complainant that there was never a discussion about her shaving her pubic hair.

So, cases get run on the basis of instructions, and quite clearly, in this case, the case was not that that text message had not been sent.  Now, the explanations for it not being on any Cellebrite download would mean that that is not excluded, and it was not a point taken up with the complainant for that reason.  It could have been sent from another phone ‑ ‑ ‑ 

EDELMAN J:   What about the GPS data?

MR BABB:   Your Honour, that is a very dangerous area, and I think my learned friend has said that some photos had GPS coordinates on them.  That is a submission from him, that was not evidence before the Court of Criminal Appeal and was very unlikely to have been of any moment in a trial where an allegation of sexual intercourse with a young person over a bandwidth of three months is said to occur.  So, unless a photograph was taken at the time of the offending or the location at Hudson Park, then it really is not going to assist, and was in evidence before the Court of Criminal Appeal.

KEANE J:   If a point was to be made about that, I suppose that is something that the accused side could simply have called for the download and done its best.

MR BABB:   Yes.

KEANE J:   It is either right or it is wrong, and if they did not know about that, and did not seek to make a case about it, then it is too late to make a case about it now.

MR BABB:   Yes.  And again, one might think there could be a reason for that, because in fact training did occur at Hudson Park.  There is a text message that, in February 2013, so within months of the end of the bandwidth for the offending, indicating that a training session would take place at Hudson Park.  That is detailed in our written submissions, and I will just give your Honours the reference for that.

The sections of the Criminal Procedure Act, there is significance in the fact that they distinguish between “otherwise been provided or disclosed”, and this is in 149D(1) of the Criminal Procedure Act. 

GLEESON J:   Might that distinction not just depend on whether or not the relevant material is information, document or a thing, so that documents or things would be provided and information would be disclosed?

MR BABB:   Not in my submission, Justice Gleeson.  It is a term that is also used at section 33 of the Act in relation to undertakings.

STEWARD J:   Can I ask you this question, and it is really perhaps a matter for your learned friend, but is the case as you understand it that is being put is that there has been non‑disclosure of information or non‑disclosure of a thing?  Looking at the notice of appeal, it simply says non‑disclosure “of a Cellebrite Download”.  Are we to read that as information or thing?

MR BABB:   Yes, your Honour, I had best leave that for my learned friend.

STEWARD J:   Yes, all right.

KIEFEL CJ:   What do you say has been disclosed though – the download?  The existence of the hard drive?

MR BABB:   Yes, the existence of the hard drive and information that – and knowledge that any information that was able to be downloaded from the phone is available.

KEANE J:   You were about to give us reference to the evidence of a text in relation to training in Hudson Park.

MR BABB:   Yes, that is in the appellant’s further materials at 351, and that is a text message from the appellant.

KEANE J:   Is that extract from the download?

MR BABB:   It is.  Your Honours, the whole of the evidence about the download that was before the Court of Criminal Appeal is summarised at paragraph 35 of the Court of Criminal Appeal’s judgment.  That is page 116 of the core appeal book.  That is the information that was before the Court of Criminal Appeal. 

The issue which was thought to be run before the Court of Criminal Appeal which has since been abandoned was that there was some other witness who may have been relevant.  However, the analysis of the text messages showed that that witness was training with her boys in afternoons and clearly it is no longer seen as having any relevance to this case.

The appellant did not read large portions of the solicitor’s affidavit in the Court of Criminal Appeal.  Counsel withdrew a number of submissions that had earlier been made at the hearing and made multiple concessions including that nothing on the face of the Cellebrite data categorically impeached Lynn Birchill’s credibility.  The Court of Criminal Appeal regarded the withdrawal of the submissions as to Ms Birchill’s independence as properly made and this is at Court of Criminal Appeal paragraph 46, core appeal book 118 and 119 - paragraph 46 is the relevant one.  

The Court of Criminal Appeal correctly, in my submission, regarded that withdrawal of that submission about Ms Birchill not being independent as properly made because they were based on 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.)

KIEFEL CJ:   The reference to the appellant not reading large portions of his solicitor’s affidavit, what do we take from that?

MR BABB:   Yes, the only portion of the solicitor’s affidavit that was ultimately read – both the solicitor’s affidavit and the affidavit of the investigator were largely not read, rather than excluded in the Court of Criminal Appeal, so in relation to the solicitor’s affidavit, which is at the appellant’s further materials commencing at 249 ‑ ‑ ‑

KIEFEL CJ:   What do we draw from the fact that large parts of it were not put before the CCA?

MR BABB:   My friend made a submission that evidence was excluded.  In fact, it was not read.

KIEFEL CJ:   Well, evidence about the download.

MR BABB:   Yes.  In relation to the investigator’s affidavit it was not excluded, it was simply not read.  That was because of the way the case was run below.  If you go to 128 of the respondent’s further materials:

Evidence and submissions no longer pressed –

and at page 128, they go through a list:

Any suggestion that there was total non‑disclosure by the prosecution of the existence of a Cellbrite download . . . prior to the commencement of the applicant’s trial.

So, it was accepted that the existence of the document was disclosed, of the thing was disclosed.

KIEFEL CJ:   These are in reply submissions, are they?

MR BABB:   They are.

KIEFEL CJ:   So, after the DPP said there was disclosure, this is the response?

MR BABB:   And new counsel came in, the initial submissions were written by the solicitor, and counsel clarified the issues and filed submissions in reply.

KIEFEL CJ:   I see.

MR BABB:   It was conceded that you could not conclude that the Cellebrite would contain all data - that is b, and c and d go to Ms Birchill, a point that is now pressed here, although it was abandoned below and the material not read as to any impact it could have had on the independence of Ms Birchill.  So, it is not surprising that the Court of Criminal Appeal came to the view that they did about the concession, one, being properly made in all the circumstances and, two, removing any challenge being properly made because Ms Birchill’s independence really was not impacted in any way.

KIEFEL CJ:   Is this the concession about non-disclosure as referred to at paragraph 47 of Justice Leeming’s judgment?

MR BABB:   That is, your Honour, yes.

KIEFEL CJ:   At appeal book 119.

MR BABB:   Yes.  The case below was run quite differently.  It was run, not as a breach of 141(1)(i) per se but more as a breach of the duties of fairness, given the circumstances of the particular case.  Your Honours, can I take your Honours briefly through the cases that I submit are relevant to the common law meaning of “disclosure”?

EDELMAN J:  How does that bear on section 142, though?

MR BABB:   In one sense it does not, but it is very much the accepted understanding of what the term “disclosure” means in New South Wales.  There is a series of cases that went to the issue of disclosure, starting with Grey, then Livingstone and Reardon.  It can give content to “otherwise disclosed” as appears in 142(1)(i).  Also, I think my learned friend’s case is that this case involves both the common law duty of disclosure and 142(1)(i).

So Grey, in this Court, involved a case of stealing and rebirthing motor vehicles where a significant witness pleaded guilty to a number of similar offences and obtained a letter of assistance from the police for his sentence proceedings.  But that fact was not disclosed to the defence.  On appeal, it was claimed that the trial miscarried because of the failure to provide the letter. 

The Court of Appeal in New South Wales found that reasonable diligence – the majority found – would have detected that the witness had some favourable consideration for his assistance to police.  Justice Simpson was in the dissent in that case.  Justice Simpson’s view was set out at paragraph [6]of Grey – that it was a very significant in the context of that case and that the existence of the letter was not something that would have been observed with reasonable diligence. 

At paragraphs [22] and [23], that view was the one that prevailed in this Court.  Clearly, the letter was relevant – as set out in paragraph [22].  At paragraph [23], this Court said:

Nor can we accept, in any event, as the Court of Criminal Appeal held, that reasonable diligence before or during the trial would have unearthed the letter.

There was a requirement for what was described as not needing to “fossick for information”.  But that is not this case.  There was no fossicking required in this case.  The facts scenario is quite different.  There was no provision of material that would have given an indication as to the existence of the letter. 

KIEFEL CJ:   It is a question of fact in each case, is it not?

MR BABB:   It is a question of fact in each case.

KIEFEL CJ:   You are not really relying upon a received meaning or definition at “common law” which covers all cases that we should understand the statute to be referring to.

MR BABB:   No.

KIEFEL CJ:   You are simply saying that case law shows where the boundaries are in relation to particular factual circumstances.

MR BABB:   I think that is right, your Honour.  In some instances, the boundaries of the obligations and the duty of disclosure and fairness to an accused will be satisfied by the disclosure of the existence of the material, clearly, and it needs to be unambiguously disclosed. 

Livingstone is a case that deals with that.  My learned friend has taken your Honours to paragraph 57.  Paragraph 50 in tab 39 – paragraph 50 correctly, in my submission, sets out the considerations – the same considerations that this Court would need to consider.  Was the material – did it come within the postulated test and, therefore, require disclosure and I do not argue that at least some of the material on the Cellebrite was possibly relevant and, therefore, fits within the very broad test. 

What is involved in disclosure, that is, the content of the duty is the important question for this Court to raise and was, in fact, the material disclosed and to that question, paragraph 57 exposes her Honour Justice Simpson’s view – Justice Simpson being the dissenting judge in Grey:

a possible distinction between the prosecution’s duty to provide copies of documents as part of the prosecution brief, and a duty to disclose the existence of documents and to make them available for inspection, should an accused person’s legal representatives wish to take advantage of that course.  I did not intend, in that reference, to include disclosure of the existence of documents by way of disclosure of other material from which an astute legal representative might infer the existence of the document in question.

That is ambiguous disclosure:

Rather, what I had in mind, was the provision of a list of documents held by the prosecution.

Such a list was provided in this case and it was unambiguously disclosed.  So, it is quite different to the circumstances in Livingstone.  Your Honours, could I just take your Honours to the section of the Criminal Procedure Act that related to the brief of evidence as at the time of committal for this accused – this appellant’s matter. That is section 75 of the Criminal Procedure Act.  Paragraph 1:

The prosecutor must serve or cause to be served on the accused person copies of –

written statements relating to the offence, and copies of any proposed exhibits identified in the statement.  So it was that section, not section 62 that was in force as at the time of committal.  Section 62 is quite different, and that is also there, your Honours.  That commenced on 30 April 2018.  Section 62 requires, and continues to require, the brief of evidence to contain:

copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person –

So, going forward, the prosecution is under that duty in section 62, but was not as at the time of committal in this matter, because the Cellebrite download was not a proposed exhibit as at the time of committal, or at any time.

GLEESON J:   Mr Babb, in Livingstone, at 57, her Honour says:

In Reardon (at [95]) I postulated a possible distinction –

But when you look at Reardon, which is the next tab ‑ ‑ ‑ 

MR BABB:   That section has been taken out of the reported judgment.

GLEESON J:   I see.

MR BABB:   I can hand up to your Honours the missing portion of Reardon.

GLEESON J:   Thank you.

MR BABB:   Yes.  Now, Reardon, just briefly, was a case of a conspiracy to import cocaine into Australia, and it was a case where one of those who were said to have been a party to the conspiracy was an informant for the police, and Reardon ultimately ran a defence at trial that he was proposing to rip off those other people involved, as opposed to importing the cocaine, and there were running sheets that – the police, in one running sheet, said I am concerned that maybe Reardon is trying to rip off his fellow conspirators, and that was not served.  Her Honour Justice Simpson, at paragraph 95, ran through the same analysis that she undertook in Livingstone.  Was it part of the duty to disclose?  Yes.  What did that duty entail?  Her Honour at about point 7 of the page:

possible to distinguish between the prosecution’s duty to provide copies of documents, as part of the prosecution brief, and its duty to disclose the existence of documents, and to make them available to the legal representatives of an accused . . . should they choose to do so.  It should not be overlooked that an extravagant supply of material may be oppressive, and as productive of unfairness as improper non‑disclosure.

That was what her Honour clarified in Livingstone in saying that existence of the material needed to be clearly disclosed in the way of a list, rather than being able to be surmised.  It was, as your Honours will see at 96, ultimately obiter because her Honour did not need to ultimately decide the issue.

The case of Lipton referred to by my learned friend is a different legislation.  It is not in the Criminal Procedure Act; it is in the Director of Public Prosecutions Act and it goes to a different context that means that it is, in my submission, not of assistance in interpreting the meaning of “otherwise disclose” in this context.

Lipton was a case about a claim of public interest immunity in relation to informer material.  It was said that Lipton’s girlfriend was an informer against him and that she encouraged him to participate in the criminal activity and a claim for public interest immunity was run by the New South Wales Police.

It was held that the material was not to be disclosed on subpoena because there was not a legitimate forensic purpose and the sentencing judge, because a plea had been entered, stayed the proceedings until the material was examined by the Director of Public Prosecutions and considered in that context as to whether it needed to be disclosed.

The court considered whether that was either an interlocutory appeal provision, section 5F, whether that order was properly made.  The court there considered that disclosure between the police and the DPP required service of the material because the DPP needed to assess that material for the purposes of whether to disclose or not.

It is quite a different context.  What we are talking about in terms of general disclosure is different from the Director’s need to access the material to make an assessment.  An example of that is, if the material is relevant, that it properly cannot be disclosed because of public interest immunity, then if a fair trial cannot be had, then the trial may need to be discontinued and it requires examination of the material.

In this case, having been notified of the existence of the material and knowing that the material will be made available should it be required, it was a decision for the appellant and his legal team as to whether to examine the material and request access to it. Ultimately, your Honours, my submission is that there is no breach of the requirement under section 142(1)(a). If your Honours are against me on that, then in the circumstances of this case there has not been a miscarriage of justice, I submit.

EDELMAN J:   Do you mean a substantial – has not been a substantial miscarriage?

MR BABB:   I am starting at miscarriage deliberately, your Honour, because the appellant has the onus in establishing miscarriage of justice.  Then the onus switches to me to establish there has not been a substantial miscarriage.  I am submitting that there has not even – that there has not been a miscarriage of justice established on what is before this Court.

EDELMAN J:   Do you accept what this Court said in Weiss at paragraph 18 that a miscarriage of justice is:

any departure from trial according to law, regardless of the nature or importance of that departure.

MR BABB:   It needs to be a matter of substance.  This, in my submission, has not been a departure that has had any impact on the fair running of the trial, so it does not amount to a miscarriage.  The CCA was correct to hold that at its highest the appellant’s case rose to the fact that Ms Elliott had not been disclosed and that was most unlikely to have affected any issue at trial, and that is at section 61 – at paragraph 61 of the Court of Criminal Appeal judgment at page 124 of the core appeal book.  The conclusion of the Court of Criminal Appeal is that in Justice Leeming’s view:

nothing like a miscarriage of justice has been established.

The appellant was not deprived of the possibility of a fair trial in circumstances where in the two things that the appellant points to there was no evidence at trial beyond that of the complainant about receipt of text or the SMS message from the appellant in 2012 or 2013.  It was not put to her

that this message was not sent and there is no evidence to suggest that the Cellebrite download proved that the appellant had not sent any such message.  One must assume that instructions were taken and followed and that was the reason why nothing was put about the text message.

Prior to the Court of Criminal Appeal hearing, the appellant expressly withdrew submissions suggesting that Lyn Birchill was not an independent witness and that withdrawal was properly made, including because even taking that evidence that was not sought to be led in the Court of Criminal Appeal at its highest, the Court of Criminal Appeal found that it did not detract from Ms Birchill’s independence in a relevant sense as a participant in early morning bootcamps at Hudson Park when the appellant had a key to the toilet block and that was what her evidence went to.

Just dealing briefly with my learned friend’s submissions.  It was certainly not agreed that there was no text message sent and that submission was not ultimately pressed, as you can see from the concessions made at 128 of the submissions in reply, and the material dealing with the Facebook entries was also not pressed.  The only material pressed in the investigator’s affidavit were paragraphs 5, 6 and 36 and 37.  They largely went to the question of Libby Elliot which is an issue that has fallen away in the hearing here.

This was a strong Crown case where the young complainant gave detailed evidence and where this Court should it move to the proviso, in my submission, would be satisfied of the guilt of the accused.  They are my submissions.

KIEFEL CJ:   Thank you, Mr Babb.  Anything in reply?

MR MORRIS:   Yes, very briefly, your Honours.  If I might just correct – if I might start at the end and move backwards?  The submission was put that there was a withdrawal of the submission regarding the Birchill independence.  That is not quite correct.  It was, in fact, continued to be pressed and if one goes to the respondent’s further bundle, which is the submissions in reply, it was clearly addressed at pages 133 through to 135, even 136, about the potential for the defence to be able to challenge the independence of Ms Birchill.  Your Honours, to suggest that it was wholly abandoned is not correct.

KEANE J:   Do we see in those paragraphs you are taking us to there the theory that you advanced to us in‑chief, that there is the sort of – the relationship between the various witnesses and their relationship to Ms Birchill that may have caused her to be – or her evidence to have been contaminated?  I must confess, in looking at it now, I can see that theory outlined.

MR MORRIS:   The point is probably taken at 135, paragraph 27:

It is conceded that there is –

and I am reading:

nothing on the face of the Cellebrite data that appears to categorically impeaches the credibility of Lynn Birchill . . . However, that is not to say that aspects of the Cellebrite data, had they been known to the defence through the immediate disclosure of the fact that this was how –

KEANE J:   Yes, but that is not getting beyond speculation, is it?  That is not getting to the particularisation of the theory that you put to us.

MR MORRIS:   No, I would have to accept that.  But the point is ‑ ‑ ‑

KEANE J:   Is there anything in the material that is actually in evidence that suggests that this theory was the subject of evidence?

MR MORRIS:   It was not the subject of evidence.

KEANE J:   So, it is just something you have just told us from the Bar table?

MR MORRIS:   It was not admitted in the Court of Appeal – the evidence about the relationship.  But I put it another way – and I thought I had put it clearly – it enables – that is the sort of investigation that would be capable of being performed.  That is to establish relationships between various witnesses.  That is, in my respectful submission, what was advanced before the Court of Appeal in paragraph 27.

KIEFEL CJ:   What would be the purpose of establishing the relationships, to show that she was something less than independent even if not wholly, completely independent?

MR MORRIS:   No, the forensic purpose would be to explore the opportunity for pollution of evidence, not that she is entirely independent in the sense of, but the opportunity for pollution.  In other words, if there is the opportunity for pollution by raising of overmuch discussion between witnesses who had been participants in a series of events which have given rise to the charges.

KIEFEL CJ:   We are still in the realms of speculation, are we not?

MR MORRIS:   What is not a matter of speculation is that that is a forensic opportunity.  The results of that, because of the refusal or the fact that the evidence was not before the Court of Appeal, I cannot put it higher than that.  I have to accept that.

GLEESON J:   Mr Morris, is the theory of forensic opportunity based on the absence of the text requesting the email or proposing the email deletion - is that raised in this document, the reply submissions?

MR MORRIS:   Can I get a note to your Honour on that?  I do not think it is but the issue is that the point was made against him that it was his mobile phone – that is at 137 and 138 – and that he was taken to have been fully aware of its contents and to submit that he was fully aware of the stored mobile data in relation to such a long period is neither reasonable or logical, but specifically, I do not think in these reply submissions was that issue raised.

If I can go back to another issue which arose in some discussion between your Honours Justice Keane and Justice Steward in relation to whether we are complaining about the disclosure of the cellebrite or the information contained within it.

I understand the issue with the notice of appeal, but it is really the content rather than the existence. So, it is the content of the Cellebrite download. To that extent, that distinguishing feature feeds into the debate that took place in relation to section 142(1)(i) where Justice Edelman stated, well, are you talking about the Cellebrite itself, which is a thing, the Cellebrite download itself which is a thing or the content of it which is information or a document.

Picking up the dictionary definition in the Evidence Act (NSW), evidence – a “document” within that dictionary definition includes anything recorded on a computer or other device and to that extent there is a distinction, in our respectful submission, within that section with respect to a “thing” being the Cellebrite download and the content of it which is a document or information. 

We concede that the existence of the Cellebrite download was disclosed, although the Cellebrite download itself was not provided.  But there was no disclosure of the information contained within it.  To that extent, the defendant’s legal representatives did not become aware of the

content of it until after trial and to that extent, the availability of that information was not capable of being analysed or used prior to trial and during the trial. 

So, my friend talked about the carve‑out, the use of the words “not otherwise disclosed”.  We say that that proviso, if it be such, refers to “otherwise disclosed by the prosecution in some other form”, whether that was part of a committal brief or whether it was otherwise disclosed by email, that is the information was disclosed, and it ties in with the issue in section 149D which is the inconvenience point.  To that extent, there was no disclosure within the issue of the “not otherwise disclosed”.  It was not provided at – the information was not provided at any time. 

Now, in relation to Justice Gleeson’s question I think it was, in relation to the use of the issue regarding the text messages, the absence of the text messages, my learned junior, Mr Ower, has drawn my attention to pages 129 and 130, which is paragraph 13e, in which reference was made to the potential use of the lack of prior text message of the kind about which the complainant gave evidence for an additional line of cross‑examination of the complainant.  So, in my respectful submission, that was sufficient for the purpose.  Your Honours, we otherwise rely on our written submissions.

KIEFEL CJ:   Thank you.

MR MORRIS:   Thank you, your Honours.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.15 am tomorrow for pronouncement of orders and otherwise to 9.30 am.

AT 12.21 PM THE MATTER WAS ADJOURNED