Edwards v The Queen

[2020] HCATrans 216

[2020] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 2020

B e t w e e n -

SCOTT EDWARDS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 DECEMBER 2020, AT 2.00 PM

Copyright in the High Court of Australia

GAGELER J:   I note the appearances.

MR J.M. MORRIS, SC appears with MR T.M. OWER for the applicant.  (instructed by Cardillo Gray Partners)

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

GAGELER J:   Yes, Mr Morris.

MR MORRIS:   Yes, thank you, your Honours. In this case, the Court of Criminal Appeal proceeded on the basis that the disclosure of the fact of a Cellebrite mobile telephone download was a sufficient disclosure of the – to use the words in the section – information document or thing contained within the download for the purpose of section 15 of the Director of Public Prosecutions Act and also for sections 141 and 142 of the Criminal Procedure Act.  It is in this respect, your Honours, that we submit that the conclusion was wrong.

GAGELER J:   What do you say should have been disclosed?

MR MORRIS:   What we say should have been disclosed was an electronic record of the Cellebrite download.

EDELMAN J:   What you really mean is produced, do you not?

MR MORRIS:   Produced, yes – to produce. 

EDELMAN J:   In 142, the words “to contain” are not just disclosure of the existence of, but also production of.

MR MORRIS:   That is right, and production to the accused or the accused’s representative. 

GAGELER J:   Like a USB stick?

MR MORRIS:   Yes, or a portable hard drive or something like that.  For the Court of Appeal to say it is nearly 6,000 pages is not to the point given modern document conveyance systems that we have – even including Dropbox or something like that.  But that would have ‑ ‑ ‑

GAGELER J:   Are you suggesting that somebody should have gone through the electronic data and extracted any particular information?

MR MORRIS:   No, we do not make that submission.  I know that much was made of that by the court, that there was no obligation to interrogate I think were the words used.  We do not say that at all except for this point.  We submit that in the modern day, given the information likely to be stored on a mobile telephone which includes texts, emails, photographs and GPS information, in the ordinary course one would expect if there is a communication between relevant participants in the criminal process or in the offence, which there was in this case, ordinarily that would be produced.

EDELMAN J:   The Cellebrite download in this case was easily searchable, was it not?  So if it had been produced it could have easily been searched by parameters including the indictment period? 

MR MORRIS: Yes, correct. We submit that it is obvious that the police did in fact consider that it was relevant, and the police must have done some sort of search on it because they discharged their obligation of disclosure for the purpose of section 15 of the Director of Public Prosecutions Act.  But this issue of the interrogation ‑ we do not suggest that the Crown has an obligation to interrogate and draw the accused’s attention to particular parts of the document.  We do not suggest that the Crown Prosecutor has any obligation to essentially give an advice on evidence to anybody. 

What they must do is examine – either look at the fact of the Cellebrite download and decide to disclose it, or to communicate it to the accused or, if it is not obvious on its face, then in order to discharge the obligation as to whether it is likely to be relevant or not, the Crown needs to at least examine the material to make a determination whether it falls within a class of information, document or thing that needs to be communicated.

GAGELER J:   Here…..it was on a list, was it not - the fact of the download was notified?

MR MORRIS:   Yes, it was, but the contents of the download was not disclosed.

GAGELER J:   You say it is the whole of - the entirety of the contents of the download that should have been handed over?

MR MORRIS:   Yes, it must be because to simply nominate that a Cellebrite download had been undertaken does not comply with the statutory provision which is to provide information, document or thing.  It is the information contained within that document which is critical.

EDELMAN J:   Your ground is a very short point, is it not?  It is that they had a document or had a database that they proposed to tender and that they were using in order to advance their own case, they disclosed it, but they did not give it to you?

MR MORRIS:   In short point, although, could I just go back a step so that there is abundant clarity here, your Honour.  One of the critical things in this case is that two days before the trial started the Crown actually did deploy this information in that they discovered that there was a witness who had sent a text to the accused and that information was procured from the Cellebrite download.  At the very latest, that was the point at which the Cellebrite download should have been provided, two days before the trial, and had that been the case it almost certainly would have led to an adjournment.

So they used, to answer your Honour Justice Edelman’s question, they used it for the identification of a witness, although it is our submission that the breadth of information contained within the document was far broader than just identifying a witness and had the capacity to address a number of issues, including whether there was an SMS text sent from the accused to the victim, or the complainant, in which it was, the complainant alleged - that she was told to destroy a pornographic video that she had been watching, which was part of the sexualisation case that was advanced by the Crown, but ‑ ‑ ‑ 

EDELMAN J:   Was it part of the defence case, as run in cross‑examination at trial, that none of the boot camps were run at Hudson Park during the indictment period?

MR MORRIS:   That is correct, your Honour.  The wife of the accused gave that evidence that to her knowledge he never ran a camp at Hudson Park, and you will see reference in the Court of Appeal judgment that the local council gave evidence that no key for the toilets had ever been issued to him, and I think that in the Court of Appeal – and I am not sure whether it made it into evidence – but on a subsequent…..application it was discovered that no licence had ever been issued to the accused to operate a business at Hudson Park and that in fact ‑ ‑ ‑

EDELMAN J:   Apart from the complainant’s evidence and Ms Birchill’s evidence, what other evidence was there that during the indictment period there were any boot camps run at Hudson Park?

MR MORRIS:   None.  It was solely the complainant and Ms Birchill.

GAGELER J:   Mr Morris, just for the purpose of clarity, could you identify which grounds of appeal you seek to advance?

MR MORRIS:   Your Honours, it is primarily ground 1, and if we are successful on that it really, we say, must flow that there ought be the convictions being quashed and probably the matter be remitted for a retrial, but you will see that there is an alternate suggestion there.  I have to accept that ground 3, which is the unsafe and unsatisfactory, is a far more difficult ground ‑ ‑ ‑ 

GAGELER J:   And ground 4.

MR MORRIS:   And ground 4, yes.

GAGELER J:   Yes, thank you.  So it is grounds 1 and 2.

MR MORRIS:   Really grounds 1 and 2, your Honour.

GAGELER J:   Thank you.

MR MORRIS:   Just going back to this disclosure of the contents, or the provision of the contents, given we have this statutory framework that requires disclosure, the failure to actually provide the contents provides the opportunity for the conduct of the Crown to be misleading and for the conduct of the defence to proceed on a false basis and that is that there is nothing contained within the contents of the document which is either relevant to the Crown case or relevant to the defence case. 

So, your Honours, the reality is that we have a problem in this case that while the Cellebrite download had been identified as a process within the police, the contents had not.  There is also a minor issue, which does not seem to have had any momentum in the Court of Appeal, but at paragraph 13 the court found that there had been disclosure of this Cellebrite download as being the plaintiff’s - the accused’s handset.  The fact is that Senior Constable Rowe’s statement does not refer to it being the handset of the accused, it simply says he downloaded an exhibit, and on the other schedules that were provided, the document was simply described as a “Cellebrite download”.

EDELMAN J:   The accused was in custody at the relevant time.

MR MORRIS:   Yes.

EDELMAN J:   Who had possession of the handset?

MR MORRIS:   The police had the possession at all times.  So, the accused was in custody at all times and the police had seized it at the time of arrest, downloaded it, and had not returned it.  This gives rise to some observations, I think, in paragraph 60 or 61 of the Court of Appeal decision, where observations were made, well, this man ought to have known what was on his handset and it also features in my learned friend’s submissions here that somehow that is an alleviating feature.  With respect, these events had occurred five and a half years before the trial – yes, it is in paragraph 61 at the bottom of the page.  The observation is made that the information:

derives from the appellant’s own handset –

and that, as a result:

the Crown need do nothing more.

We say that that is wrong, as a matter of principle.  The reality is that he was in prison, the events had taken place five and a half years before, it was a short period of offending, identified to be November 2012.  After 1 December 2012, the complainant had left the district – had been living with the applicant and the applicant’s family and so she had departed so it could have been no later than November 2012. 

Further, what knowledge does the average person have as to what might have been recorded on a mobile telephone and, more importantly, what may have been preserved over a five‑year period because it is important that one thing that was established by the Cellebrite download is that the text communications and other information for the period of offending had been preserved in this case.  It was capable of being retrieved and it was capable of being interrogated. 

Now, when we say “interrogated” – as I understand the position – there are certain levels of interrogation depending on your sophistication but it is not just like reading a document.  You can actually tease out the information in far greater detail and there may be hidden layers of information there such as the place of telephone calls and the place of photographs which can reveal GPS information. 

So the reality is that for the compliance with the provisions of the Act, one must not only disclose the existence but – to use the words of the Act – “the information document or thing”.  Your Honours, we submit that the Court of Appeal decision, in a very real and practical sense, promotes a departure from the disclosure rules rather than compliance with it and that the current decision does not accord with the statutory purpose of the provisions or the common law rules and, as such, it stands as binding authority for the time being unless ‑ ‑ ‑

EDELMAN J:   Mr Morris, when you refer to “information, document or thing”, is that section 142(1)(l) that you are relying upon?

MR MORRIS:   Just excuse me a moment - no.  It is (i) -142(1)(i) – that is:

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

So, that is the section 15A disclosure from the police to the DPP, or otherwise ‑ ‑ ‑

EDELMAN J:   Why is it not in this case (1)(f), given that as late as 16 April 2018 it was proposed to be an exhibit tendered by Senior Constable Rowe?

MR MORRIS:   It would fall into that category if that was the decision at the time and if that decision had been made it would have to have been disclosed.  But, of course, neither Senior Constable Rowe’s statement made it into evidence nor did the contents of the Cellebrite download.  Your Honour was asking about (l) - it would also fall within (l) and (k).

GAGELER J:   But basically your case is focused on (i)?

MR MORRIS:   Yes.  Concepts of reasonable relevance would be a coverall that would take – which would include an intended tender, credibility, reliability of any witness, so it would be a catchall anyway.  Your Honours, as your Honours observed, it is a short point and there are a number of other factual errors in the – we contend errors in the judgment.  There is this debate about paragraph 50 as to whether there was an obligation on the Crown to advise how it was that Ms Birchill was discovered and that is a question of rule 87 of the Legal Profession Uniform Conduct Rules. 

The other statement made at paragraph 50 to suggest that the appellant would be able to review financial accounting records to confirm the timings of attendances of Birchill and that inferentially accessing financial records would be an answer for the failure to disclose as required by the statute is a false issue.  The problem was not the applicant’s ability to access financial records but the Director failing to comply with the statutory obligations. 

I have dealt with the interrogation of the material.  That, in my respectful submission, is a false issue.  It is not for the accused to seek it out but for the Crown to provide the contents.  So, your Honours, unless there is anything else, they are my submissions.

GAGELER J:   Thank you, Mr Morris.  Mr Babb.

MR BABB:   Thank you, your Honours.  Your Honours, there was an attempt to confirm that the applicant had all of the relevant documents in that a letter was written - and this is in the affidavit of Marley Zelinka that was before the Court of Criminal Appeal - on 3 May some 11 days before the trial, enclosing the Crown brief index and asking if there were any outstanding items please let me know as a matter of urgency and I will provide these items to you.  So, there was an attempt to comply completely with the relevant provisions of section 142 of the Criminal Procedure Act, and that list that was provided ‑ ‑ ‑ 

EDELMAN J:   Mr Babb, it may have been an error by the prosecution, but do you accept that section 142 required the prosecution to provide a copy of the Cellebrite database or download?

MR BABB:   Your Honour, it is not always the case that copies are provided.  Disclosure takes place by providing lists, as set out in section 142(1)(j) and notice to an accused person of documentation and advising them of the existence of that material. 

GAGELER J:   Mr Babb, (j) is concerned with, relevantly, information not in the prosecutor’s possession. 

MR BABB:   Yes.

GAGELER J:   Is that engaged here?

MR BABB:   No, it is not.  This hard drive was at some stage in the prosecution’s possession.  You are quite right, your Honour.  But there has to be due diligence on the part of the defence.  Where the prosecution writes and outlines the contents of all the relevant material and specifically asks that if there are any outstanding items please let me know as a matter of urgency and I will provide them to you, then if there has been non‑compliance here it has been of the sort that was attempted to be dealt with.  This is the second lot of correspondence, on 17 April, and my learned friend is incorrect in saying that it was not not made clear that it was the applicant’s mobile phone because a schedule that was sent on 17 April ‑ ‑ ‑

GAGELER J:   Mr Babb, can I just ask is the submission that you are now making to the effect that section 142 was complied with, or is it to the effect that the non-compliance was something that did not lead to a miscarriage of justice?  Which way are you putting it?

MR BABB:   A submission firstly that there was an attempt to comply with section 142 by asking the defence to check and make sure that they had everything that was on the list that was sent to them and, secondly that, although they did not do that, and they did not come back and say we do not have the hard drive containing the data from the applicant’s phone, that there was no miscarriage of justice resulting from it.

GAGELER J:   Mr Babb, in the Court of Appeal’s judgment there is a reference to a case that I have not looked at separately, Director of Public Prosecutions v Kinghorn.  That appears to be a case in which a very similar issue of the duty of disclosure arose.  Is this becoming a general question in the administration of justice in New South Wales?

MR BABB:   No, it is not, your Honour.  Kinghorn was a Commonwealth case, but no, this is a case specific to its facts where clearly there was an attempt to correspond with the other side and make sure there was nothing of which they were unaware. 

EDELMAN J:   Mr Babb, do you accept the submission by Mr Morris that the Cellebrite database or download is material that would reasonably be regarded as relevant to either the prosecution case or the defence case?

MR BABB:   Yes, I do.  It could possibly lead to a line of inquiry.

EDELMAN J:   It is more than that, is it not?  In the submission, the written submissions that are in the application book, the applicant refers to two matters.  One is that there were 3,850 device location files, which pinpointed the location of the device, and the second one is that in the indictment period not one of those location files was at Hudson Park.  Is that common ground?

MR BABB:   No, it is not, your Honour.  In fact, there are a number of misstatements in the application in relation to this evidence that never got in and, as a result - I have only checked some of it, but if I can give you an example.  There is reference to there only being one message between Lynn Birchill and the applicant and in fact that was incorrect, there were 332 instant messages between the applicant and Lynn Birchill, 43 of them exchanged during the indictment period. 

At message 77, the applicant writes to Lynn Birchill, “training at Hudson Park this morning” and in the ERISP the applicant feigns to not know where Hudson Park was, at questions 77 to 82.  There is also reference in the instant messages on the download to Westfield carpark and it is mentioned a number of times in the messages between Lynn Birchill and the applicant and in the record of interview - sorry, the applicant states in his special leave application at paragraph 10 that he did not go to Westfield carpark and that entry was impossible, as it was said.  So, no, I do not - it is not common ground, what is said in relation to the Cellebrite download. 

Getting back to your Honour Justice Gageler’s question about whether this is commonplace, it is not, and oftentimes the only way to check what is in the possession of the accused and their legal representatives is to ask them, your Honour.

GAGELER J:   Why would that be, Mr Babb?  Why would that be, if the obligation is to hand over what you have?

MR BABB:   Well, just because at times when briefs change hands or material gets lost, it is good practice to send a list, as required by section 142 and check and ask, as was done in this case, whether there is anything on the list that is not in possession of the accused and, if so, copies will be made and will be handed over, and that was what was sought to be done here.  There is no miscarriage of justice arising from the lack of having the Cellebrite download. 

The matters particularly picked up on in the submissions – Ms Elliott - that was a witness who only trained in the afternoons and the text messages themselves that went in before the Court of Criminal Appeal showed that, and the Court of Criminal Appeal was correct to say that the applicant has identified another potential witness whose evidence, if it had been adduced, is most unlikely to have affected the trial. 

The sexualised text - there was only one reference to a text message that was in the evidence of the complainant.  It was not sexualised except in that it was said that she received a text message from the accused saying that she should delete a pornographic movie that the child safety check had informed that was on her iPad, and there was no evidence before the CCA on the question of whether the phone that was the source of the Cellebrite download was the same phone or the only phone that he had been using in 2012, nor was there any basis to assume that the absence of evidence that there was data on the Cellebrite download – there was not anything to say that if you deleted material that it still came up on the Cellebrite download. 

In fact, a concession was made in the Court of Criminal Appeal to that effect.  The concession in writing was there could be no automatic and conclusive assumption that the Cellebrite download contained all data, including user deleted data, placed on the phone during the relevant period.  Unless I can assist your Honours further, they are my submissions.

GAGELER J:   Thank you, Mr Babb.  There will be an extension of time within which to file the application for special leave to appeal.  There will be a grant of special leave to appeal, limited to grounds 1 and 2 disclosed by that application. 

The Court will now adjourn to 10.00 am tomorrow.

AT 2.32 PM THE MATTER WAS CONCLUDED