R v Bell (No. 7)

[2023] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v BELL (NO. 7)

[2023] SADC 133

Reasons for Decision of his Honour Judge Stretton 

25 September 2023

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

CRIMINAL LAW - EVIDENCE - DEPOSITIONS

On 14 March 2023, the morning set for the commencement of the jury trial, the defence applied for a stay on the basis of a claimed DPP reliance on ‘new allegations’ and recent prosecutorial disclosure.

Firstly, the defence alleged they had been given ‘Late notice of the DPP's reliance on the 11 August 2020 Overview (‘Appeal Overview’) in circumstances where it had not been the subject of consideration by the accused's legal representatives or the accused prior to 14 March 2023 and where it contains numerous new allegations and references to documents not included in the Draft Overview version 2’.

Held:

1.      There was no ‘late notice’ of that document, rather it was an update of an earlier - supplied factual summary provided in 2019 to assist the defence understand the case. This update had been supplied on several occasions to the defence in 2020. The defence had not recognised the document to be an update at the time.

2.      The DPP had never ‘relied’ on that document to particularise its case. The document was a summary or overview that had never purported to reflect the evidential matrix of the case.

3.      The document contained no ‘new allegations’ or ‘references to documents’ beyond the statements filed in support of the particularised Information, which such Information and statements the prosecution had always maintained represented its case.

4.      The defence stance that it was entitled to base its understanding of the case, the preparation of the defence, and its consideration of evidential matters to object to on a such a summary/overview rather than the filed statements, the subsequently served evidence, or anything else, represents a fundamentally misconceived and inadequate way to approach the defence of a criminal prosecution.

Secondly, the defence alleged a ‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued and responded to on Thursday 9 March 2023 ... The production of additional not previously disclosed financial material on Friday 10 March 2023 ... (and) the identification of 420 items not previously disclosed that were described as being relevant or possibly relevant and produced on disc on Friday 14 March 2023’.

1.      There was no ‘failure to disclose an ICAC Master Disclosure Spreadsheet’. That document was supplied to the defence on 9 March 2023 after it had been completed and supplied to the DPP on 6 March 2023.

2.      Most of the material that the defence claimed had not been disclosed to them had in fact been previously disclosed to them by the DPP some years ago. The defence did not check whether they had the documents prior to claiming that they did not have them.

3.      The limited amount of relevant material that had not previously been either provided or disclosed by way of running sheet was, however, disclosed and provided to the defence by 9 March 2023, five days prior to the trial date. That limited quantity of material should have been able to be easily considered and any necessary instructions taken over the course of that five day period prior to trial.

The application did not justify any delay to the start of the trial, and is formally dismissed.

Telecommunications (Interception and Access) Act 1979 (Cth), referred to.
R v Bell [2020] SADC 107; Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116; R v Bell [2022] SADC 140; R v Bell (No. 2) [2023] SADC 19; R v Bell (No. 4) [2023] SADC 78; R v Bell (No. 5) [2023] SADC 90; R v Bell (No. 6) [2023] SADC 112; Bell v The King [2023] SASCA 86, considered.

R v BELL (NO. 7)
[2023] SADC 133

1. This is an application by the defence to adjourn the trial date and/or stay its commencement, made on the morning the trial was listed to commence, 14 March 2023, on the grounds of disclosure-related issues.

   The application

2. The application was made orally, without notice on the morning of 14 March 2023, initially seeking an adjournment of two weeks.

3. The written defence application on 21 March 2023, sought a stay or adjournment ‘until further order’ or in the alternative ‘a date to be fixed but not before 29 May 2023’, in other words, two and a half months after the 14 March 2023 trial date.[1]

   [1]     Interlocutory application FDN 126, filed 21 March 2023.

   The charges

4. The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s (‘SEETA’) money without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[2]

   [2]     Information dated 9 October 2018, as amended on 27 April 2023.

   Brief procedural history

5. As set out in prior rulings, the matter has a long procedural history, and the court has regard to and references the full history of the matter, without setting it all out. The earlier history is best set out in earlier judgments, including the District Court dismissing an initial defence application for a stay,[3] a subsequent unsuccessful defence appeal and reservation of questions of law to the Full Court,[4] a recent judgment of the District Court dismissing a further defence application for a stay and determining related issues[5] and an application whereby the defence sought and were granted leave to reverse their earlier election for trial by judge alone.[6]

   [3]     R v Bell [2020] SADC 107.

   [4]     Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116.

   [5]     R v Bell [2022] SADC 140.

   [6]     R v Bell (No. 2) [2023] SADC 19.

6. As summarized in those earlier pre-March 2023 decisions, the offending is alleged to have occurred through a series of events between 2009 and 2013, with the Independent Commissioner Against Corruption (‘the ICAC’) commencing an investigation in 2014. In May 2017, the ICAC forwarded the matter to the Director of Public Prosecutions (‘DPP’) who decided to prosecute, filing an Information in the Magistrates Court in August 2017. The matter was committed to the District Court for trial, the DPP filing the Information in October 2018.[7]

   [7]     Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, [1]-[7].

7. This is the fifth time the matter has been listed for trial.[8]

   ·The 8 October 2019 trial date was vacated, as defence counsel, Mrs Shaw KC indicated at a directions hearing on 4 July 2019 that she had taken over the defence brief on account of a prior counsel’s illness, but that she could not be ready for trial by the 8 October 2019 trial date.[9]

   ·The 8 July 2020 trial date was vacated in consequence of a defence stay application lodged on 1 June 2020 needing to be argued.[10]

   ·The 7 February 2022 trial date was vacated in consequence of a defence special leave application to the High Court being granted, but for which leave was subsequently revoked.[11]

   ·The 10 October 2022 trial date was vacated as defence counsel, Mrs Shaw KC, was instructed in the unrelated Alzuain matter which was listed at the same time.

   ·The current defence application for an adjournment and/or stay was foreshadowed without notice on the morning of the 14 March 2022 trial date, necessitating the matter being adjourned to enable it to be filed and argued. Several further defence pre-trial applications were lodged on that and subsequent days, together with two defence applications to adduce expert evidence. These applications and further subsequent defence applications further pushed back the commencement of trial.

   [8]     FDN130, Affidavit of Darren Evans dated 23 March 2023, para 14.

   [9]     T2, 4 July 2019.

   [10]   The ruling R v Bell [2020] SADC 107 was delivered on 7 August 2020, rejecting the stay application. The defence appealed that decision with the Supreme Court also rejecting the stay application in Bell v The Queen [2020] SASCFC 116 delivered on 3 December 2020.

   [11]   For the full history of that process see R v Bell [2022] SADC 140.

   The application

8. The defence was not ready for the application to be argued on 14 March 2023. The written application was filed a week later, on 21 March 2023, together with a lengthy affidavit and annexures from the accused's solicitor, Ms Rachel Shaw.

9. The grounds set out in the written application are discursive, but the primary thrust centres around a claimed:

   ·‘Late notice of the DPP’s reliance on the 11 August 2020 Overview (‘Appeal Overview’) in circumstances where it had not been the subject of consideration by the accused’s legal representatives or the accused prior to 14[12] March 2023 and where it contains numerous new allegations and references to documents not included in the Draft Overview version 2’,[13] and a claimed:

   ·‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued and responded to on Thursday 9 March 2023 ... The production of additional not previously disclosed financial material on Friday 10 March 2023 ... (and) the identification of 420 items not previously disclosed that were described as being relevant or possibly relevant and produced on disc on Friday, 14[14] March 2023’.[15]

   [12]   This must be a typographical error as the Friday was 10 March 2023.

   [13]   FDN 126 filed on 21 March 2023, ground 1.

   [14]   This must be a typographical error as the Friday was 10 March 2023.

   [15]   FDN 126 filed on 21 March 2023, grounds 2-4.

10. The application goes on to plead that the defence needed time to consider, investigate and get instructions on the ‘numerous new allegations’ and material, and that the defence were continuing ‘enquiries and endeavours to obtain further documents from ICAC’ and that further time was needed. The court has regard to the full grounds as set out in the notice without repeating the notice and accompanying affidavits in full.

    Evidence called in the application

11. The defence filed affidavits by the instructing solicitors Ms R Shaw and Mr Henderson. The affidavit of Ms R Shaw addressed the defence’s position and perspective on the matter, with Mr Henderson’s affidavit briefly indicating his agreement with Ms R Shaw.

12. The DPP filed an affidavit by an instructing solicitor, Mr Evans, addressing the DPP’s position and perspective on the matter, together with related annexures.

13. Ms R Shaw’s affidavit evidence addressed both the primary matters relied upon by the defence.

    Defence ‘reliance’ on the earlier prosecution overview

14. In relation to the above claimed ‘Late notice of the DPP’s reliance on the 11 August 2020 Overview (‘Appeal Overview’) in circumstances where it had not been the subject of consideration by the accused’s legal representatives or the accused prior to 14 March 2023 and where it contains numerous new allegations and references to documents not included in the Draft Overview version 2’,[16] Ms R Shaw conceded in her affidavit that while the defence had in fact been in possession of the document in question (a prosecution overview and summary of facts of the prosecution case filed on 11 August 2020), having been provided with it by the DPP on 12 August 2020, they had not realised what it was,[17] and had not read it.

    [16]   FDN 126 filed on 21 March 2023, ground 1.

    [17]   A new, amended, expanded overview and summary of the prosecution case.

15. Ms R Shaw admitted that the defence had been provided with this ‘Prosecution Overview and Summary of Facts (amended) dated 11 August 2020’, which was an overview of the prosecution case, attached to a DPP affidavit of Keryn Jane Park dated 12 August 2020. The document was also referenced in the proposed Appeal Book index circulated and sent to the defence on 27 October 2020, was contained in the book of documents sent to the defence under cover of a letter dated 10 September 2020 and was also contained in a ‘Final Appeal Book’ sent to the defence on or around 28 October 2020.[18]

    [18]   FDN 128, Affidavit of Rachel Ebony Shaw dated 20 March 2023, paras 35-38.

16. Ms R Shaw explained why the defence had not read the document:

    36.I can only assume that I did not query the reference in the index to the prosecution overview and Ms Park’s affidavit as I presumed the content of the document was the same as the Draft Overview Version 2 that the parties had been proceeding under in the trial court. I say that because my understanding is that if a party wanted to include a document that was not previously disclosed or relied upon for the purposes of an appeal, leave would need to be sought. Further, as the appeal was on a question of law, I did not anticipate new material would be presented to the Court.

17. It is common ground that, to assist the defence, the DPP had provided the defence with an earlier document giving an overview of the case, in October 2019.

18. That earlier document was an 82-page 493 paragraph document headed ‘(DRAFT) PROSECUTION OVERVIEW AND SUMMARY OF FACTS VERSION 2’ which indicated on its title page it was filed by the former DPP, Adam Kimber SC.

19. It is common ground that the updated document was referenced to and provided to the defence in August, September, and October 2020. That updated document is an ostensibly different document.

20. It is a 141-page, 831 paragraph document headed ‘PROSECUTION OVERVIEW AND SUMMARY OF FACTS (AMENDED)’, which indicates on its title page was filed on 11 August 2020, by the new DPP, M. G. Hinton QC. It is differently titled, dated 2020, marked ‘AMENDED’, nearly double the length of the 2019 document, and filed by a new DPP.

21. Ms R Shaw annexes the proposed index to the 2020 Appeal documents which reflects this title, that it is an ‘(AMENDED)’ document and is dated 11 August 2020.

22. Ms R Shaw gave evidence that during email correspondence concerning the recent defence application to reverse their election for trial by judge alone, reference was made in an email from the DPP indicating that:

    ... your counsel has referred to the document tendered on this application as a ‘Prosecution Opening’ ... It is not an opening address. It is an overview of evidence which was provided to you as a courtesy to assist you to understand how the evidence fits together and allow you to more efficiently prepare for trial. The prosecution is not required to, and will not, open its case until the commencement of the trial proper.

23. On 27 February 2023, Ms R Shaw wrote asking if the defence should ‘rely on the draft 2 version of the Overview or draft opening that has been the subject of the recent application? If not, would you please advise of any changes?’. The attached prior and subsequent correspondence from the DPP exhibited to Ms R Shaw’s affidavit maintained a position that the proposed evidence was the filed statements, and that the draft summary referenced was essentially just that, a draft and a summary, rather than purporting to be either an opening or comprehensive. That ongoing correspondence also addressed other issues over time being joined between the defence and the DPP, which for brevity, the court does not set out.

24. Ms R Shaw annexes a letter from the DPP dated 6 March 2023 during this correspondence. It addresses many issues which are unnecessary to describe for present purposes. It also responded to recent requests to say whether the overview was being ‘relied’ on:

    …

    Defence obligations to prepare for trial - considering the brief of evidence and rule 39 objections Firstly, insofar as you have used the prosecution’s second draft of a summary of evidence (and not the most recent one provided to defence in the Full Court proceedings on 11 August 2020) to ‘foreshadow’ further objections, rather than the statements, I remind you that this summary was provided to you to simply assist you to get across the case. It is not intended to, and could not, replace the statements.

    …

    Inaccurate correspondence I observe that a narrative is emerging from your recent correspondence which ignores important matters we have told you, and appears not to reflect an acknowledgment of the history of the matter. While it cannot be suggested that is a deliberate distortion, to ensure the record of correspondence reflects a better accuracy, I address several (but not all) of those aspects of your recent correspondence which are inaccurate:

    You told the Court in your correspondence on Friday 3 March 2023 at 11.37 am that you ‘repeat our request that prosecution identify whether its relying on the Overview tendered on the voir dire or some other document, so that we can consider what can be agreed’.

    Firstly, the prosecution will not communicate with you through the Court. That you have advanced your position in this way, and issued a request to the prosecution through correspondence with the Court is unfortunate. That is especially so in circumstances where we have suggested a conference to discuss pre-trial matters on several occasions. As I have set out above, you have never responded to that request.

    The terms of what you have said to the Court do not reflect our correspondence on this issue or what you have requested of us (‘identify which document it is relying on’). You have been told we are relying on the prosecution statements not any ‘document’. That approach is uncontroversial. Further and in any event, your counsel has a copy of an updated version of that Summary dated 11 August 2020, which was provided to you and your counsel during the Full Court appeal (an annexure to the affidavit of Keryn Janine Park dated 12 August 2020).

    …

25. This correspondence reflects the DPP’s position over time before me that they were relying on the filed statements of evidence to reflect their case, and that any summary provided over time was to assist the defence to understand the case rather than purport to either be an ‘Opening’, or a complete summation of the case, or the comprehensive evidence upon which reliance would be placed.

26. The 6 March 2023 DPP correspondence repeated that position and noted that the defence had been in possession of an updated version of the summary since August 2020.

27. In further DPP correspondence annexed by Ms R Shaw dated 9 March 2023, the DPP reminded the defence they had been in possession of the updated version of the summary since August 2020, indicating ‘That updated document is likely to be of more assistance to you in understanding the case than an older version of the document’.

28. Ms R Shaw said that between 14 and 16 March 2023 she checked and realised that the defence had been given the amended overview in August 2020. On 17 March 2023, she checked with the accused that he had not been given it. Ms R Shaw said that because of the circumstances, the amended overview had not been given to either the accused or to an, at that time, unnamed forensic accountant retained by the defence. Ms R Shaw said that she was only now aware of ‘new contentions and reliance on specific documents in relation to those contentions’ referred to in the amended overview and consequently anticipated ‘it will take approximately two months to get instructions and make further investigations’.[19]

    [19]   FDN 128, Affidavit of Rachel Ebony Shaw dated 20 March 2023, paras 39-49.

1. It is common ground that the prosecution case, in terms of the evidence reflected in the filed declarations, has not changed since 2020, and the defence has had since 2020 to obtain instructions in relation to all that evidence.

2. The prosecution has maintained that their case is as reflected in the particularised Information and the filed statements of evidence, and that any summary overview provided is not intended to be comprehensive or refer to all the evidence and should not be treated by the defence as substitute for, or an express or implied limitation of, the prosecution case as reflected in the filed evidence.

3. The defence have maintained that up until the week set for the commencement of trial (14 March 2023) they were basing their understanding of the case, the preparation of their defence, and their consideration of evidential matters to object to, on the earlier 2019 summary overview document rather than the filed statements or anything else.

   The claim of late or inadequate disclosure

4. In relation to the pled ‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued and responded to on Thursday 9 March 2023 ... The production of additional not previously disclosed financial material on Friday 10 March 2023 ... (and) the identification of 420 items not previously disclosed that were described as being relevant or possibly relevant and produced on disc on Friday, 14[20] March 2023’,[21] Ms R Shaw's affidavit embarks on a discursive discussion of some of the communications between the defence and the DPP.

   [20]   This must be a typographical error as the Friday was 10 March 2023.

   [21]   FDN 126 filed 21 March 2023, grounds 2-4.

5. Ms R Shaw said that because she was aware that in an unrelated matter (R v Robinson & Patzel) the ICAC had produced a ‘disclosure schedule’ in October 2022, she asked if the DPP were aware of such a document in the current matter and received the answer that, at that time, they were not so aware. It is now clear that indeed no such document existed at that time.

6. Ms R Shaw said that in response to a defence subpoena, on 9 March 2023 the ICAC produced an Excel spreadsheet in the current matter of 8,866 described items said to have been produced or received by the ICAC during its investigation and prosecution of the accused. It was described as a ‘Master Disclosure Schedule Document’. The ICAC had also specified in that schedule which items had and had not been disclosed, with 3,168 items that the ICAC were of the view had not been disclosed.

7. Whilst Ms R Shaw does not mention it in her affidavit, the ICAC correspondence annexed to her affidavit states that there had been no document of that name in the possession of the ICAC, rather the ICAC had conducted a detailed review of all their holdings including ‘all electronic files’. They did this pursuant to a 3 January 2023 SAPOL/DPP request for assurance that all unused materials had been provided to the DPP for disclosure to the defence. To satisfy that request the ICAC undertook a comprehensive process which included reviewing each of the (8,866) items in their possession, assessing its relevance, and checking whether it had to the knowledge of the ICAC been disclosed. They did this by cross­ referencing every item, noting any relevance, noting the disclosure dates, and referencing how each item had previously been disclosed. The ICAC collated all of this into a new document as at 6 March 2023 entitled ‘Master Disclosure Schedule Document’.

8. So, the evidence is that there had never previously been such a document. There has been no consequent ‘failure’ to disclose it, as asserted/inferred in the application grounds and Ms R Shaw’s affidavit.[22]

   [22]   E.g., ‘This is the document the defence had been seeking since 25 October 2022’, per FDN 128, Affidavit of Rachel Ebony Shaw dated 20 March 2023, para 8. ‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued ...’, per FDN 126 Interlocutory Application dated 20 March 2023, at para 2.

9. Further, the 8,866 items cited and listed were not all items which were necessarily disclosable, rather they were every document that existed in relation to the matter held by the ICAC,[23] whether or not the item had any relevance whatsoever to the prosecution case, the case the defence must meet, or could potentially assist the defence.

   [23]   FDN130, Affidavit of Darren Evans dated 23 March 2023, para 14.

10. As a result of this detailed examination of every item in the possession of the ICAC, the investigator concerned reached the view that, so far as he was aware, a small number of relevant documents had not been provided to the prosecution, namely 114 documents comprising correspondence between the ICAC and witnesses and 78 documents comprising unused financial records. The ICAC letter refers to these two figures as totalling 195 documents.

11. The ICAC letter identified 230 further items which whilst not relevant in the opinion of the investigator were ‘potentially relevant’.

12. Copies of those documents were provided to the defence with the letter, by 9 March 2023, five days prior to the trial commencement date.

13. Considering the significance placed on the disclosure issue, the Court sets out the relevant portion of the 6 March 2023 ICAC letter:

    I provide this letter in response to correspondence I received on 3 January 2023.

    I have been requested to provide an assurance that all unused materials (subject to any claims or clear lack of relevancy) have been provided to the Prosecution for disclosure to defence.

    Prior to being in a position to give such assurance I have undertaken the following enquiries:

    ·On 5 January 2023, I extracted details of all electronic files held within the electronic case file for this matter held on the Commission's records management system, “Objective”, and entered them into an Excel spreadsheet which I named, Master Disclosure Schedule Spreadsheet.

    ·Between 6 January 2023 and 3 March 2023, I reviewed each electronic document, assessed its relevance and whether the document had previously been disclosed to the Prosecution by cross-referencing against material previously disclosed under the numerous delivery certificates and material provided under previous disclosure requests and/or subpoena returns.

    o   In columns on the Master Disclosure Schedule Spreadsheet, I recorded the relevance of each document, whether it had been disclosed or not, the disclosure date and how disclosed, and a comment (where relevant).

    o   During the abovementioned period I sought advice from the Commissioner's legal officers regarding assessing the relevance of some documents.

    o   Material which was returned under disclosure/subpoena but was not on Objective has been added to the Master Disclosure Schedule Spreadsheet.

    As a result of my review, I have established the following:

    ·195 documents that I deem to be relevant, copies of which I understand have not previously been provided to the Prosecution: namely:

    o   114 documents comprising correspondence between the Commission and witnesses; and

    o   78 documents comprising unused financial records.

    ·230 documents that I deem not relevant to proceedings but which I have marked potentially relevant as the Prosecution may have an alternate view:

    o   194 documents comprising correspondence between the Commission and witnesses regarding court proceedings delays post 19 June 2020 not relating to evidence or potential evidence; and

    o   36 documents comprising copies of Statements of Service of numerous Department for Education staff.

    I enclose copies of the abovenamed material on a disc labelled Additional material disclosed 6 March 2023 (5 copies - 1 x SAPOL, 2 x DPP, 2 x Defence). Some of the material has been redacted to mask personal information (as evidenced by the file name). Some of the material was obtained before my involvement in the case. Therefore, out of caution, I have marked some of the material relevant and included it on the enclosed disc.

    I also enclose on each disc extracts from the Master Disclosure Schedule Spreadsheet listing each document disclosed.

14. Ms R Shaw stated that, on 14 March 2023, the defence requested 574 further items from the items listed in the ‘Master Disclosure Schedule Document’. Ms R Shaw said that 44 of those were supplied on or about 20 March 2023 together with ICAC correspondence indicating that a further 185 of the requested items had previously been disclosed, and the remainder of which would need further information from the defence as to relevance to justify disclosure.[24]

    [24]   Affidavit of Rachel Ebony Shaw dated 20 March 2023, para 20.

15. Ms R Shaw said that, as of 20 March 2023[25] she was still in the process of taking instructions from the accused in relation to the 425 documents provided, the list of 3,168 items listed and described on the ICAC Master Disclosure Spreadsheet, a recently provided two-page statement of a Mr Barr and a three-page statement of a Ms Richardson (plus annexures).[26]

    [25]   The date of her affidavit, FDN 128.

    [26]   Affidavit of Rachel Ebony Shaw dated 20 March 2023, para 22.

16. Mr Evans’ affidavit addressed in detail the process whereby the DPP had requested SAPOL request ICAC to provide assurance as to disclosure.

17. Before addressing that affidavit, it is necessary to go back a step to put the current disclosure issue in context.

18. As set out in R v Bell [2022] SADC 140, in the latter part of 2022, whilst the defence claimed on the one hand that they had not or could not be guaranteed that the ICAC had made full disclosure, on the other hand they maintained the prosecution would be in contempt of court if they asked the ICAC to assure disclosure.

19. To compound the issue, defence counsel Mrs Shaw KC specifically declined to provide any assurance that the accused would not seek to issue contempt proceedings against the DPP or the individual prosecutors of this matter, should they seek any further disclosure from the ICAC or seek assurances about disclosure from the ICAC.[27] 

    [27]   R v Bell [2022] SADC 140 at [108]-[109].

20. The defence sought no disclosure assurances from the ICAC, although there was no legal reason they could not have done so if they had held genuine concerns about disclosure.

21. So, on the one hand the defence claimed they could not be assured they had full disclosure from the ICAC, but at the same time defence counsel, Mrs Shaw KC’s stance held the tacit threat of contempt proceedings over the prosecution if the prosecution sought disclosure or disclosure assurances from the ICAC,[28] and did not seek such assurances themselves from the ICAC.

    [28]   R v Bell [2022] SADC 140 at [108]-[109].

22. Accordingly, this defence stance, involving as it did, the tacit threat of contempt proceedings against the DPP and personally against the individual prosecutors of this case, gave the prosecution officers an understandable reticence to seek such supplementary ICAC disclosure assurances.

23. On 29 November 2022, R v Bell [2022] SADC 140 was delivered holding that it was lawful for the DPP to seek disclosure assurances from the ICAC.[29] On 6 December 2022, the defence indicated it was going to consider seeking leave to appeal and request that questions of law be referred to the Court of Appeal. It was not until 21 December 2022 that the defence informed the court it had decided not to do so.

    [29]   R v Bell [2022] SADC 140 at [107]-[110].

24. Mr Evans deposed that on 22 December 2022, the prosecution requested that SAPOL obtain from ICAC a letter of assurance ‘that all unused materials, subject to claims and clear lack of relevance, have been provided to the prosecution for disclosure to defence’.

25. Mr Evans said that over time he received updates from SAPOL concerning the ICAC’s progress in their consequent review. He was initially advised that the ICAC held roughly 8,600 documents in respect of this matter. Mr Evans was advised that the ICAC investigator was going through an administrative process of opening every one of the 8,600 documents and reviewing each to ascertain whether it had been disclosed, and if not, whether it was relevant and if so, whether it was subject to any claims.

26. Mr Evans said that on 19 January 2023, he was advised by SAPOL that ICAC had identified some materials for disclosure during their review. That same day, Mr Evans wrote to the defendant's representatives updating them on the progress of the ICAC’s review of their entire holdings, and disclosing the material identified and provided to him.

27. Mr Evans said that at the conclusion of ICAC’s review, on 9 March 2023 he was provided, by SAPOL, a disc containing materials identified by ICAC for disclosure, together with a small number of pages of materials which were not included on the disc. Mr Evans immediately forwarded that material to the defendant's representatives, together with a copy of ICAC’s assurance letter.

28. In that letter, ICAC indicated that the 195 documents deemed by the investigator to be relevant were provided. Of those, 114 were said to comprise correspondence between the Commission and witnesses, and 78 were said to comprise unused financial records.

29. Mr Evans deposed that he then reviewed those materials and considered their significance in the context of the statements comprising the prosecution brief. Mr Evans deposed that his review of these documents revealed the following:[30]

    [30]   For ease of reference, the court has referenced these with the original paragraph designations of a. to p. within para 11 of Mr Evans’ affidavit dated 23 March 2023.

    a.That many of the documents comprise email chains, meaning that the document is made up of emails corresponding back and forward between people as part of an ongoing conversation. Accordingly, many of the documents are printouts of an email chain at a point in time and are therefore heavily repetitive. Mr Evans observed that once the last printout in the chain is identified, all earlier printouts could be disregarded as their contents are necessarily included in the final printout. Of the documents, there are 15 bundles of chain duplicates which comprise a large bulk of the material and as repetitions of the same material can simply be disregarded.

    b.That approximately half of the bulk of the documents are made up of correspondence between ICAC investigators and witnesses (Mr Evans repeating the observation that most of these documents are chain duplicates which can be disregarded). Mr Evans said that these communications between ICAC investigators were in any event largely in two categories:

    i.Emails that pose questions which are subsequently answered in the witness's statement.

    ii.Emails making procedural arrangements for the execution of statements.

    c.One of the emails involving the witness Peter Fox discusses a factual matter.

    d.Five of the documents are ‘Digital Forensics Tasking Requests’ which are effectively a document setting out that ICAC have asked for a particular task to be completed.

    e.One of the documents is an Australian Business Register search which is publicly accessible.

    f.One document is contained in the annexures to the statement of Caroline Hill dated 24 June 2015.

    g.One document is a notice to the Department for Education to refrain from investigating the allegations involved in this matter.

    h.Seven of the documents appear to be lists of items for searching officers to look for during various searches.

    i.One of the documents is a draft statement of Lock which was released to the defence by the Court upon a subpoena return by the Department for Education on 4 June 2020. 

    j.26 of the documents are certificates under the Telecommunications (Interception and Access) Act1979.

    k.Three of the documents are Certificates of Title in the defendant’s name.

    l.14 are financial documents, nearly all of which had already been provided to the defence on 15 June 2020. Mr Evans identified each of the 14 bundled documents, and set out when, where and how each had been disclosed to the defence. Each of the 14 bundles of identified documents had been reviewed and identified by the prosecution forensic accountant, Summersides, and had been disclosed to the defence per covering letter and the forensic accountant’s working papers on 15 June 2020. For brevity these are set out by footnote.[31]

    [31]1.   Financial document Status Statements for ANZ Account ending 6336 (ANZ 01) were reviewed by Summersides “(see BS44)”. Cover letter and bank statements were disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    2.Statements for Bendigo Bank Account ending 0537 (DK NAB 02b) were reviewed by Summersides “(see BS3 l)”. The bank statements were disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    3.NAB mortgage dated 29 March 2011 and associated documents (DK NAB 08c) were reviewed by Summersides “(see FA659)” and were disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    4.Transaction listing for NAB account ending 7683 (DK NAB 27a). This document was reviewed by Summersides “(see BS33 page 5)” and was disclosed to the defence on 15 June 2020 as part of Summersides' working papers.

    5.Transaction listing for NAB account ending 3058 (DK NAB 28b). This document was reviewed by Summersides “(see BS34 page 5)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    6.Transaction listing for NAB account ending 3240 (DK NAB 36b). The document was reviewed by Summersides “(see BS35 page 5)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    7.Transaction listing for NAB account ending 6152 (DK NAB 37b). The document was reviewed by Summersides “(see BS36 page 5)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    8.Account Authority Card for NAB account ending 8152 (DK NAB 39a). The document was reviewed by Summersides “(see FA156 page 3)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    9.A Settlement Statement re: 6 Brolga Street dated 8 March 2011. The document was reviewed by Summersides “(see 20110308 OPS OTR)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    10.ANZ Deposit Receipt dated 9 March 2011. The document was reviewed by Summersides “(see F A657)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    11.Statements for ANZ account ending 6336 (ANZ 01). The document was reviewed by Summersides “(see BS44)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    12.Statement for ANZ account ending 0758 (ANZ 02). The document was reviewed by Summersides “(see BS41)” and was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    13.ASIC Extract for Bellistic. The document was reviewed by Summersides (see FA67). The document was disclosed to the defence on 15 June 2020 as part of Summersides’ working papers.

    14.Statements for NAB account ending 7081. The document was reviewed by Summersides “(see BS23)” and was disclosed to defence on 15 June 2020 as part of Summersides’ working papers.

    m.Mr Evans deposed that because he believed the work file of the prosecution forensic accountant, Summersides, was provided to the prosecution directly following a proofing in June 2020, (and then sent directly to the defence by the prosecution) he expected, therefore, that the ICAC would not have created any record of those materials being provided to the prosecution. So, whilst the ICAC had been of the view they may not have been provided to the defence, they had all actually been provided to the defence in 2020.

    n.Accordingly, Mr Evans deposed that the noted financial records in ICAC’s ‘disclosure’ had been provided to the defendant’s representatives and that they were, therefore, not properly part of ICAC’s unused materials. The defendant’s representatives had had a copy of these materials for nearly three years.

    o.Only the following financial documents totalling 20 pages had not formed part of the material in Summersides’ working materials or were not otherwise available to the defendant:

    ·       One page Report from account 132026122 (DK NAB 01 a)

    ·       Seven-page Bendigo Bank Inquiry printout (DK NAB 02a)

    ·       One page transaction listing for NAB account ending 4846 (DK NAB 11c)

    ·       One page Transaction listing for NAB account ending 3694 (DK NAB 12b)

    ·       Two-page Account Authority Card for NAB account ending 2656 (DK NAB 18a)

    ·       Three-page screen print for NAB account ending 3685 (DK NAB 22)

    ·       One-page screen print of signatory details for NAB account ending 4469 (DK NAB 25b)

    ·       Three-page Bellistic Super ASIC extract

    ·       One page OCBA Bond details for Edward Street

    p.Mr Evans exhibited and provided (marked DE21) a copy of the 20 pages of financial documents which were not disclosed to defence in June 2020.

1. Mr Evans then reviewed the 230 documents which the ICAC had indicated in their ‘assurance letter’ that they had deemed not relevant, but which they had provided anyway on the basis that they might be ‘potentially relevant’. Mr Evans deposed that he had considered their significance in the context of the statements comprising the prosecution brief. He reported that he did not find a single document of evidentiary substance, except for a statutory declaration of witness Jerkavits which was in identical terms to a statement by that witness previously disclosed to the defendant's representatives. In particular:

   ·Many of the documents comprised email chains and there were many chain duplicates.

   ·The overwhelming majority of the documents were generic emails sent to all witnesses providing updates on the progress of the trial listing and responses about witness availability. Further, it appeared that most, if not all, of these emails were released to the defence by the Court under a subpoena return by ICAC on 19 June 2020.

   ·A number of the documents comprise ‘Statement of Service Reports’ in respect of various employees of the Department for Education and Child Development.

2. Mr Evans further deposed that, during the court hearing on 14 March 2023 he became aware that the defendant's representatives had requested 574 further documents from ICAC which they had identified on the Disclosure Schedule and which ICAC had deemed not disclosable.

3. In relation to those 574 further documents requested by the defence, Mr Evans said that he was included in the correspondence between ICAC and the defendant’s representatives about the ICAC’s consideration of the request and consequently became aware that the ICAC immediately agreed to provide copies of 44 of the documents sought.

4. On 21 March 2023, Mr Evans was provided a disc by SAPOL which contained the 44 documents from ICAC. Mr Evans reviewed those materials and considered their significance in the context of the statements comprising the prosecution brief. Mr Evans deposed that a considerable amount of that material had been previously supplied to the defence by way of witness Summersides’ working papers on 15 June 2020 and by subpoena return on 19 June 2020. Mr Evans deposed that apart from materials which had already been disclosed to the defence, an extract from an annual report, publicly available ABS records, draft statements identical to final statements or with minor amendments, or a small number of draft statements containing less than the final statements (all final statements of which are in possession of the defence),[32] only 14 pages did not appear to have been previously available to the defence, as follows:

   ·Document 376, a two-page motor vehicle registration for S144ATX and transfer application.

   ·Document 377, a two-page motor vehicle registration certificate for S357ACC and disposal notice signed by the defendant.

   ·Document 378, a two-page motor vehicle registration certificate for S357ACC and transfer application signed by the defendant.

   ·Document 379, a two-page motor vehicle application for registration for VSP882.

   ·Document 408, a two-page screen print of history of registration of S144ATX.

   ·Document 409, a two-page screen print of history of registration of S726AGR.

   ·Document 414, a two-page screen print of history of registration of VFX430.

   [32]   Per Mr Evans affidavit:

   a.One of the documents (236) is a two-page extract from the annual report of the Department of Education and Children’s Services which was tabled in the House of Assembly in 2010.

   b.Two of the documents (252 and 253) are bundles of paperwork and notes which were annexed to the statements of witness Peter Gordon, which was disclosed to defence, albeit in a different order.

   c.Document 257 is a bundle of bank statements for NAB account ending 2282. These statements were reviewed by Summersides (see BS04 from page 37). They were disclosed to defence on 15 June 2020 as part of Summersides’ working papers.

   d.Three of the documents are printouts from the Australian Business Register (393, 394 and 395), a publicly available register.

   e.Document 415 comprises the two annexures to the statement of witness Harker dated 3 April 2017 which has been disclosed to defence.

   f.Document 417 is an identical copy of document 414.

5. Mr Evans deposed that these documents were however listed in the 2018 ICAC Running Sheet at page 41 which was previously disclosed to the defence, and in the 2020 ICAC Running Sheet at page 265, also previously disclosed to the defence.

6. Mr Evans set out in relation to each draft statement the largely minor amendments between the relevant draft and the final disclosed version and dealt with each of the 44 documents in detail. For brevity, Mr Evans’ observations as to those draft statements and associated correspondence in its detail are footnoted. Helpfully for the purposes of both the defence and the court, Mr Evans sets out or describes any differences in some detail.[33]

   [33]   g.   The following documents are draft statements or correspondence attaching draft statements:

   i.147 - this is an email from Simon Smith attaching a statement with marked-up changes. The changes are limited to changing the word ‘were’ to ‘was’ twice and deleting the words ‘and Limestone Coast Education and Training Association Incorporated (LCETA)’. There are no other differences to the signed statement disclosed to defence.

   ii.450 - this is a draft statement of Rosalba Aloi. It contains one marked-up change; the dated ‘9 April’ to ‘4 May’. The final statement is identical to this draft statement as marked-up.

   iii. 456 - this is a draft statement of Matthew Doody. The final signed statement contains the following changes: Paragraph 2 on page 5 has been changed from “he was going to start his own organisation after LCETA was wound down and to assist with signing documents ...” to “ ... after LCETA was wound down. My appointment as Public Officer and Chairperson was to assist with signing documents as a formality for the winding up of the association”. The following has been added to the first paragraph on page 7: “I did not vote as the Chairperson of LCETA authorising Troy Bell to deregister and wind up the association as indicated in these minutes”. Three pages of content have been added and appear as pages 7 through 9 of the final signed statement.

   iv. 458 - this is a draft of the statement of Noel Barr dated 1 December 2016. The draft contains a space for the time of provision of the statement to be completed. It also contains a blank for the number of years Mr Barr has held his current position. Those details have been inserted in the signed statement, but there are otherwise no differences.

   v. 464 - this is an unsigned statement of Jason Di Staso. It was previously disclosed to defence by the prosecution.

   vi. 470 - this is a draft of the addendum statement of David Chant dated 14 January 2020. The draft statement contains a number of placeholders for dates to be inserted. In the final statement, those dates have been inserted. It is otherwise identical to the signed statement.

   vii. 479 - this is a draft of the statement of Palma Edmonds dated 8 June 2018. There are three differences between the draft and the signed statement: At paragraph 6, the words ‘the pay was not that great’ have been added. At paragraph 13, the words ‘I also destroyed all my tax record late last year’ have been added. At paragraph 14, the words ‘I recall at one stage I was being paid by a company run by Bell and his wife’ have been removed. There are no other differences between the two versions of the statement.

   viii. 480 - this is a draft of the addendum statement of Palma Edmonds dated 27 September 2019. There is one difference between the two versions of the statement. At paragraph 4, the words ‘including child protection areas’ have been removed in the signed statement. There are no other differences between the two versions of the statement.

   ix. 481 - this is a draft of the statement of Peter Fox dated 30 April 2018. There is one passage which differs between the two versions. At paragraph 14, the draft statement says ‘I was the only DECD staff member working at the ILC when I was appointed as the manager. There were three other employees...’. The signed statement says ‘There were two DECD staff members working at the ILC when I was appointed as the manager, myself and the Front Office staff member. There were two other employees ...’. There are no other differences between the two versions of the statement.

   x. 483 - this is a draft of the addendum statement of Peter Gordon dated 6 September 2019. At paragraph 22, the draft statement says, ‘This firm is now called Galpins’. In the signed version, this says ‘This firm is now called Galpins Accountants Auditors and Business Consultants’. At paragraph 25 the word ‘mostly’ has been added. At paragraph 26, the words ‘I used to audit Troy Bell’s (Bell) personal self-managed superannuation fund when I worked at Galpins. I recall I also’ have been removed from the signed statement. There are no other differences between the two versions of the statement.

   xi. 484 - this is a draft statement of Peter Gordon which was never signed. The contents appear to have been amalgamated into the addendum statement dated 6 September 2019, as it contains the same narrative, but more detailed. There are no topics in this draft affidavit which are not dealt with, in more detail, in the signed addendum statement.

   xii. 497 - this is a draft of the addendum statement of Mark Orford dated 23 January 2020. The draft contains a prompt for the addition of Orford’s rank and it also contains a blank for the date he commenced his secondment to ICAC to be inserted. Those details have been inserted in the signed statement, but there are otherwise no differences.

   xiii. 508 - this is a draft of the statement of Robert Shelton dated 12 January 2018. It contains the options for swearing or affirming in the header, whereas the signed version only has the affirmation text. It contains a prompt for the addition of the date the statement will be provided which has been completed in the final version. Mr Evans identified the following differences:

   At paragraph 3, the last two sentences are swapped, with the phrase ‘I am now in the final year of my tenure’ being replaced by ‘I am now in the first of a new five-year tenure commencing 2017’. At paragraph 9, ‘Millicent High School appears as 'MHS’ in the signed version. At paragraphs 11, 33 and 55, ‘Independent Learning Centre’ appears as ‘ILC’ in the signed version. At paragraph 12, the phrase ‘The main difference between the ILC and MHS’s off-campus program was …’ appears as ‘DECS Rules under the off-campus program meant that students could be flexibly enrolled at MHS, that is, not needing to attend normal full­ time hours at school and able to attend training at other locations’ in the signed statement. The effect of the paragraph is similar. At paragraph 19, paragraph 20 on page 8 and paragraphs 31 and 33, Millicent High School appears as ‘MHS’ in the signed version. At paragraphs 23 and 57 ‘Peter Fox’ appears as ‘Fox’ in the signed version. At paragraph 24 ‘ICAN FLO’ appears as ‘Innovative Community Action Networks (ICAN) Flexible Learning Options (FLO)’ in the signed version. At paragraph 31, an annotated comment by Shelton appears in the text in the signed version. At paragraph 32, ‘Chris Davey’ appears as ‘Davey’ and an annotated comment by Shelton appears in the text in the signed version. At paragraph 36, the name ‘Daniel Kane’ has been defined and in paragraph 37 the defined name is used instead of the full name. The same occurs in respect of ‘Ben Heathcote’ in paragraph 38 and ‘David Burt’ in paragraph 62, 92, 96 and 105. Paragraph 38 of the draft statement is a replica of paragraph 39, which has been removed from the signed version. Paragraphs 39, 40, 41 and 52 have been expanded upon, with more detail added. Paragraph 60 of the signed version has been moved from paragraph 106 in the draft version. At paragraph 61, an annotated comment has been incorporated into the signed version. Paragraph 74 contains an annotated comment which has not been incorporated in the signed version. At paragraph 79, an annotated comment by Shelton has been incorporated into the text of the signed version. At paragraph 82, the phrase ‘LCETA purchases as a board member’ has been added in response to an annotated comment. In paragraph 86 ‘the Department’ appears as ‘DECD’ in the signed version. At paragraph 103, an annotated comment has not been incorporated in the signed version, it merely replicates what is said in the sentence in any event.

   xiv. 509 - This draft statement of Helen Strickland dated 25 July 2019 was released to the defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 — email ‘Email Corbett to Strickland attaching draft affidavit and DPP proofing request.msg’). There are no differences between this draft statement (509) and the draft statement returned under subpoena.

   xv. 522 - this is a draft of the statement of Timothy Elliott dated 13 February 2017. A draft of this statement was released to the defence by the Court under a subpoena return by ICAC on 19 June 2020. This draft statement (522) has minor typographical differences from the draft statement returned under subpoena. The dates on the front page are different and the words ‘and email correspondence’ have been added. On page 9, the following text has been removed: ‘The signing of cheques is considered more of a banking process and is not bound by the constraints of the DECS Procurement Framework and delegation limitations’. The paragraph at the bottom of page 11 has been amalgamated with the paragraph that follows it. The documents are otherwise identical.

   xvi. 524 - this is a draft of the statement of Peter Fox dated 30 April 2018. A draft of this statement was released to defence by the Court under a subpoena return by ICAC on 19 June 2020. This draft statement (524) differs in the following ways from the draft statement returned under subpoena: The header has been updated to a newer format. The introduction paragraph is different. Names have been modified throughout to include the given name of the person being spoken about. For example, references to ‘Bell’ were changed to ‘Troy Bell’. Spelling and grammar corrections have been made throughout. There are no differences of substance between the two versions.

   xvii.527 -this is a draft of the statement of Love Ghogar dated 30 June 2020. It does not differ from the signed statement disclosed to defence.

   xviii.528 - this is the statement of Love Ghogar dated 29 April 2020. Correspondence provided by ICAC with their assurance letter explains that it was provided unsigned during the Victorian COVID lockdowns. It does not differ from the document disclosed to defence.

   xix. 531 - This is a draft of the statement of Linda Hay dated 8 December 2016. This draft statement was released to the defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 - email ‘Email to Linda Hay 07122016 No 3.msg’). There are no differences between this draft statement (531) and the draft statement returned under subpoena.

   xx. 532 - This is a draft of the statement of Stephen Herbert dated 21 October 2016. Apart from the insertion of the words ‘37 years and have a B Arch FRAIA’, there are no differences between this draft statement and the signed statement.

   xxi. 534 - This is a draft of the statement of Faye Hill dated 13 November 2016. A draft of this statement was released to defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 - email ‘Email from Faye Hill 08112016.msg’). This draft statement (534) is different from the draft statement returned under subpoena in that missing zeros from exhibit references have been added in throughout, on page 4 a value of 30 cents was changed to 20 cents, and a date was changed. At the top of page 6, the words ‘used to be’ were added. On page 9, the words ‘up to a certain’ were added. On page 11, a date has been changed. On pages 42 and 43 an exhibit reference was added.

   xxii. 537 - This is a draft of the statement of Faye Hill dated 13 November 2016. This draft statement was released to the defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 - email ‘Re _Hill, Faye (A187499).msg’). There are no differences between this draft statement (537) and the draft statement returned under subpoena.

   xxiii. 540 - This is an earlier statement of Elizabeth Kelly. Except for the date of execution, it does not differ from her later statement dated 4 February 2020 which was disclosed to the defence.

   xxiv. 549 - This is a draft of the statement of Linda White dated 29 November 2016. On page 3, the following words have been added to the signed statement; ‘The screen shots are attached to this statement as appendix DET LW 01’. The two versions are otherwise identical.

   xxv. 554 - This is another draft of the statement of Robert Shelton dated 12 January 2018 with very few minor changes which are marked-up.

   xxvi. 555 - This is a draft of the statement of Emanuela Simos dated 14 February 2017. This draft statement was released to defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 - email ‘Email to Emanuela SIMOS.msg’). There are no differences between this draft statement (555) and the draft statement returned under subpoena.

   xxvii. 556 - This is a draft of the statement of Nicholas Smith dated 13 December 2016. A draft of this statement was released to defence by the Court under a subpoena return by ICAC on 19 June 2020 (see disc 1.2 - email ‘Email from Nick Smith 12122016.msg’). This draft statement (556) contains a prompt for the insertion of the date of the giving of the statement. It also contains a prompt for the insertion of the amount of time he has worked in his current role. Those details have been inserted in the signed statement. One paragraph on page two has been modified in a minor way. There are otherwise no differences between this draft statement and the draft statement returned under subpoena.

   xxviii. 560 - This is a draft of the statement of Gregory Wiese dated 13 December 2016. The draft contains a prompt for the insertion of the amount of time the witness has worked in his current role. It contains a prompt to insert the name of the database DECD records are held in. Those details have been inserted in the signed statement. There are otherwise no differences between this draft statement and the signed statement, with the exception of the execution date. 

   xxix. A686126 - This is a draft of the statement of Steven Dalton dated 28 October 2016. It has handwritten amendments by the then-investigating officer which identifies a number of technical errors, such as the description of invoices located and the description of locations where documents were found. The following paragraph appears to have been added in the final version: "I am aware this conversation has since been transcribed and a transcription is attached to the declaration of Orford which has been marked MSHJS1 for identification purposes. I have read the portions of the transcript relating to the conversation I had with Shelton and the production of the search warrant. The transcript is a true and accurate record of the event". The remainder of the statement does not differ from the final version. The statement is accompanied by document A686234 which is an email from the then­ investigator explaining the notations he had made on the statement and bringing the discrepancies to the witness's attention.

1. Mr Evans concluded his description of schedules, the correspondence referred to and the recently disclosed documents in the variously discussed categories above, with observations as to the time taken for his review. He observed that the nature of the task completed by ICAC was necessarily different than his task of reviewing the materials produced.

2. Mr Evans observed that the ICAC's task traversed every document that existed in the matter, finding disclosure records, reviewing what had and had not been disclosed to their knowledge, and carefully considering claims etc. Mr Evans deposed that all the documents produced by ICAC (including chain duplicates) are contained within five lever arch folders when printed single-sided. Mr Evans said that with the assistance of a competent student in ordering, identifying chain duplicates and indexing the documents, he had been able to become very familiar with all of the documents provided by ICAC discussed above in less than two working days.

   Submissions

3. Detailed submissions took three days from 27-29 March 2023.

4. The court has regard to each and every submission, and each matter raised and put, but for brevity does not set it all out. The submissions were put against a backdrop that the trial start had, at that stage, been delayed approximately two weeks. Accordingly, the defence had, at that stage, had those two weeks to further prepare for trial. The following submissions are to be seen in context, as at 27-29 March 2023.

5. In relation to the first primary thrust of the application ‘Late notice of the DPP's reliance on the 11 August 2020 Overview (‘Appeal Overview’) in circumstances where it had not been the subject of consideration by the accused's legal representatives or the accused prior to 14 March 2023 and where it contains numerous new allegations and references to documents not included in the Draft Overview version 2’,[34] the defence submitted that:

   ·The earlier 2019 overview ‘overtook the committal proceedings as the vehicle by which the accused would understand the case against him ... Likewise, the accused’s trial preparation therefore centred on that document, and not the document which was provided in the Appeal Book in 2020 for the purposes of the appeal’.[35]

   ·That ‘whatever the reason for the accused not having provided detailed instructions on the Appeal Overview for the purposes of the criminal trial, the accused cannot receive a fair trial if he has not provided detailed instructions to his legal representatives about the matters contained in the Appeal Overview’, and that because of the accused’s lawyers ‘relying upon the Draft Overview Version 2’, the accused had not obtained expert advice in light of the subsequent 2020 Appeal Overview, or 'the recently disclosed material’.[36]

   ·That particularly as the defence revoked their election for trial by judge alone on 28 February 2023, their knowledge of the prosecution case and consequently objections to the admissibility of evidence now all needed to be determined prior to the commencement of the trial.

   ·In any event, the defence needed to have full instructions from the accused and their forensic accountant on what the defence now understood from what they described as the prosecution’s 2020 ‘Appeal Overview’ the prosecution case to be.

   ·That because it had also relied on an earlier (withdrawn) discreditable conduct notice and a DPP 1 June 2020 letter, rather than the filed committal statements or the later amended 2020 ‘Appeal Overview’ for the purposes of considering discreditable conduct, the defence also needed more time to consider the discreditable conduct material apparent in those materials.[37]

   [34]   FDN 126 filed on 21 March 2023, ground 1.

   [35]   FDN 132, Accused’s Written Submissions on Application for a Temporary Stay or an Adjournment of the Trial, generally, and at paras 70-71, 76.

   [36]   FDN 132, Accused’s Written Submissions on Application for a Temporary Stay or an Adjournment of the Trial, generally, and at paras 73-75.

   [37]   FDN 132. Accused’s Written Submissions on Application for a Temporary Stay or an Adjournment of the Trial, generally, and at paras 72, 76.

6. In relation to the second primary thrust of the application ‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued and responded to on Thursday 9 March 2023 ... The production of additional not previously disclosed financial material on Friday 10 March 2023 ... (and) the identification of 420 items not previously disclosed that were described as being relevant or possibly relevant and produced on disc on Friday, 14 March 2023’,[38] the defence submits that:[39]

   ·There is a ‘significant amount of material that, on its face, is apparently relevant to the defence that has either not been disclosed or has been disclosed for the first time on or after I10 March 2023’.

   ·The DPP indicated in October and November 2022 that the matter was ready for trial, ‘However it appears that it was not until December 2022 that the director sought an assurance from ICAC that all materials had been disclosed’.

   ·The ICAC assurance as to disclosure ‘was not given and passed on to the defence until 10 March 2023 after a disclosure schedule was produced containing over 3,000 undisclosed documents and 425 documents were produced on a disc’.

   ·The additional 574 documents sought by the defence from the ICAC are relevant both to the accused’s defence and cross-examination of various witnesses.

   ·The ‘financial material disclosed for the first time’ against the backdrop of the Director ‘now relying on the Appeal Overview as additional discreditable conduct’ is or at least might be relevant to the opinions the accused's expert is asked to provide.

   ·The defence had provided the recently provided financial materials and the 2020 overview to their forensic accountant when they had been provided to the defence in March 2023 and were expecting an update from him on 11 April 2023.

   [38]   FDN 126 filed on 21 March 2023, grounds 2-4.

   [39]   FDN 132, Accused’s Written Submissions on Application for a Temporary Stay or an Adjournment of the Trial, generally, and at paras 78-83.

7. In relation to each of these primary thrusts and considering the other matters set out in the grounds, written submissions and oral argument, the defence maintained that, in combination, it was in the interests of justice to further adjourn the trial to enable full instructions to be obtained, prepare for trial, and investigate whether further expert advice or other evidence was required.[40]

   [40]   FDN 126 Application; FDN 132. Accused’s Written Submissions on Application for a Temporary Stay or an Adjournment of the Trial, and oral argument 14 March 2023, 16 March 2023, 21 March 2023, 27 March 2023, 28 March 2023, 29 March 2023.

8. The prosecution submitted that the matter should not be further adjourned or stayed, as, neither the justice of the case required it, nor would it be unfair to proceed with the trial.

9. The prosecution commenced by observing that over the course of the prosecution, the defence had consistently filed significant applications on the eve of hearings scheduled for another purpose which have had the effect of displacing listings, and that the applications have been filed without any notice to the prosecution in advance.[41] Mr Evans deposed to some recent examples:

   a. Defence filed three new amended applications on 7 October 2022, without notice to the prosecution or leave of the Court to do so. They were to be argued on 10 October 22. This was at the same time that the Court was notified.

   b.The matter was listed for a voir dire on 25 January 2023 in respect of pre-listed voir dire applications. On 23 January 2023 the prosecution were advised that defence were instead bringing an application to revoke the election for trial by judge alone. This was at the same time the Court was notified.

   c.The first time that defence complained about not understanding the ambit of the case and raised any potential for not being ready for trial was on 27 February 2023 (see exhibit REST to the affidavit of Rachael Shaw made on 20 March 2023). Nothing was raised prior to that date.

   d.The application for an adjournment of two weeks made on 14 March 2023 was made with no notice to the prosecution. This was at the same time the Court was notified.

   e.The prosecution were first notified that defence were applying on 21 March 2023 for stay or a two-month delay in the trial at 9.01 pm on 20 March 2023. This was at the same time the Court was notified.[42]

   [41]   FDN130, Affidavit of Darren Evans dated 23 March 2023, para 6.

   [42]   FDN130, Affidavit of Darren Evans dated 23 March 2023, para 6.

10. The prosecution submitted that there was insufficient information to conclude that a further adjournment was warranted in the interests of justice, for example an absence of factual material clarifying what work had been done and still needed to be done. Firstly, because the defence ‘reliance’ on a 2019 prosecution summary as the entirety of the case the defence had to meet was entirely misconceived, that the defence had all the actual filed evidence since 2020, and ought to have had instructions on the filed evidence, and hence the prosecution case, years ago.  Secondly, because the defence already had most of the material they were currently submitting they did not have; for example, the financial documents from the principal forensic accountant’s file and all the investigational materials which were listed in running sheets the defence had also had for years. Further, that in light of a number of factors including the history of the defence conduct of the matter generally, there could be no confidence that further delay would advance the proceedings.[43]

    [43] FDN 133, (Prosecution) Written Outline of Submissions on Application for Temporary Stay and Adjournment filed on 20 March 2023.

11. In particular, as to the claimed late disclosure, the prosecution submitted:

    ·That in fact what has occurred is not in any sense ‘late disclosure’, rather it is a late process of universal discovery by the defence of every document held by the ICAC, dressed up as 'late disclosure'.

    ·On analysis by Mr Evans, the defence had already received from the prosecution most of the small number of disclosable documents thought by the ICAC not to have been disclosed, particularly the financial documents, years ago, and a large amount of the material was in any event fully disclosed and set out in the 2018, 2020 and 2023 running sheets which the defence had already been in possession of.

    ·As set out in Mr Evans affidavit, even the ICAC financial material described by the ICAC as ‘new’, had been provided to the defence by the prosecution in 2020.

    ·This is the first time that the materials listed in the 2018 and 2019 running sheets had been requested. They had all been disclosed to the defence by those running sheets years ago and could easily have been requested by the defence years ago.

    ·It has not been established that any of the hitherto undisclosed material is relevant disclosable material to which the obligation of disclosure actually attaches, nor which being discovered at this stage ought materially to affect the ability of the defence to prepare.

    ·It is wrong and unfair for the defence to criticise the prosecution for not asking the ICAC for a further assurance of full prosecutorial disclosure prior to December 2022, when the defence took the stance that it was illegal for prosecution to communicate with the ICAC and request them to do so, and repeatedly refused to provide an assurance to the prosecution that the defence would not take contempt proceedings against the DPP if they did so.[44] It was not until the District Court ruled on 29 November 2022 in R v Bell [2022] SADC 140 that such action was lawful, that the DPP could safely ask the ICAC for a further disclosure assurance, which they immediately did.

    [44]   As set out in R v Bell [2022] SADC 140 at [108]-[109].

12. In particular, as to the claimed ‘prosecution’s late reliance on the 2020 Appeal Book Summary’:

    ·The prosecution had not indicated at any stage that it was ‘relying’ on that 2020 summary or the earlier 2019 summary.

    ·The prosecutor gave the earlier 2019 summary to Ms R Shaw in October 2019 to assist her in the context of her having taken over the case.

    ·The summaries had been provided as an overview aid to the defence to understand the prosecution case. There was a 2019 summary provided to the defence in 2019, then an updated amended 2020 summary was provided to the defence in 2020. Neither document purported to be comprehensive, neither purported to refer to all the evidence to be called, nor be something upon which the defence could or should ‘rely’ to represent the entire prosecution case.

    ·The earlier summary had at an early stage been described by an earlier prosecutor as a ‘draft opening’, although from its structure and format, it could not have been an actual opening. An opening rarely purports to describe the entire case to be called and almost never lists every witness and recounts the evidence to be given by each witness. It could never, therefore, delimit the prosecution evidence, nor should it ever obviate the need for the defence to get instructions on the filed statements. Nor could a ‘draft opening’ ever be the entire document a defence could or should rely on to determine whether objections be taken to evidence.

    ·The evidence to be called is, as in every other case, per the statements filed in the court, and the prosecution case has remained exactly the same, relying on the same statements, since 2020.

    ·The defence had not responded to many prosecution requests to agree facts or meet or engage with the prosecution as to the need to call/delimit the evidence, so the prosecution have maintained that they will call all witnesses, and that the filed evidence represents the prosecution case.

    ·As in every other case, the defence have the entire prosecution case in the form of the filed statements, and have had them for years, and should, therefore, currently have instructions on all the evidence. The defence should have been able to file any r 39 notices objecting to any items of evidence years ago.

    ·The court cannot accept that the defence have been proceeding on the basis that nothing more than a 2019 draft summary would make up the prosecution case. That is so for all of the above reasons, and if nothing else, that substantially more prosecution evidence was filed and served in 2020. For example, extensive further evidence of uncharged acts was filed and set out in the 16 January 2020 statement of Laurie Williams, and substantial further financial matters were filed and set out in the forensic accountant Summersides’ addendum statement of 6 February 2020. It should have been obvious that the 2019 document did not purport to represent the whole case, nor could it be ‘relied upon’ by the defence to delimit the case it had to face to only that which it mentioned.

    ·The defence in making its January/February 2023 submissions[45] in support of its application to revoke its 2020 election for trial by judge alone, specifically submitted that it was aware the case it had to meet had changed since 2020. In those January/February 2023 submissions, the defence referred to statements and other materials it had received since its 2020 election for trial by judge alone and submitted that the material received since its 2020 election had plainly changed the forensic landscape it faced and had changed the case to such a degree that justified it reversing its earlier election for trial by judge alone.[46]

    ·In all these circumstances, the court simply cannot accept that the defence have been proceeding up until 14 March 2023 on the basis that nothing more than a 2019 draft summary would make up the prosecution case.

    [45]   R v Bell (No. 2) [2023] SADC 19; Written submissions on 2, 3 and 20 February 2023, then oral submissions over three full days of 3, 6 and 10 February 2023.

    [46]   R v Bell (No. 2) [2023] SADC 19 at [22]-[24], and the new evidence, materials and statements summarised from [46]-[71].

13. The court has considered all the arguments made, although has not set them out. The court has carefully considered all the oral submissions and submissions in reply, but for brevity does not set them all out.

    The course of argument

14. When these matters were raised without notice on 14 March 2023, the defence having been given the 195 ‘relevant’ documents and the further 230 documents not thought relevant but ‘possibly’ relevant, the defence indicated that it had that day requested 574 of the further 3,168 items from the ICAC schedule. The court adjourned the case until 21 March the following week for all these matters to be considered and instructions obtained.[47]

    [47]   T37-38, 14 March 2023.

15. When the matter was called on for an update on 16 March 2023, the court was told that the defence request for the further 574 documents was being considered by the ICAC. Defence counsel explained how, as at the 14 March hearing, she had been unaware of the 2020 Appeal Overview and foreshadowed the defence would be making an application for a longer adjournment when the matter convened the following week. The court did not indicate it would not allow that, but indicated in the meantime, at least a discrete r 39 application in relation to alleged utterances could be argued at that time the following week.[48]

    [48]   T63-64, 6 March 2023.

16. The DPP protested at the foreshadowed application for a lengthy further adjournment of the trial. The DPP said that they had been assisting the defence in a ‘huge’ number of ways since 2019 including with summaries and explanations of the case, but that the ordinary trial situation, where the totality of the prosecution case is made up of the filed evidence in support of a particularised Information, remained the same and the defence should be prepared on that basis.

17. When the matter convened the following week on 21 March 2023, the defence had that day filed the formal application for a further adjournment.[49] Defence counsel admitted that of the 574 documents the defence had requested from the ICAC, in fact, the defence already had been in possession of 185 of them, and a further 44 were being provided to the defence by the ICAC, with the ICAC indicating that in relating to the remaining items that many attracted LPP[50] or contained personal information, but that the ICAC would provide more if the defence could indicate relevance.[51] Defence counsel said that they had sent all the newly provided documents to their forensic accountant.[52] 

    [49]   Interlocutory application FDN 126, filed 21 March 2023.

    [50]   Legal Professional Privilege.

    [51]   T67, 80, 21 March 2023.

    [52]   T70 21 March 2023.

18. When the court indicated at that 21 March 2023 hearing that the discrete r 39 application in relation to alleged utterances should be argued at that time, defence counsel withdrew that r 39 application on the basis they would not argue it until they had had complete disclosure.[53] Defence counsel indicated that no other recently filed defence pre-trial applications were ready to be argued either.[54]

    [53]   T75, T81, 21 March 2023. On 26 June 2023, the defence indicated the exclusion of the alleged utterances would not be pursued: T1335-1336.

    [54]   T86, 21 March 2023.

19. The application for adjournment was primarily argued over three full days comprising 27-29 March 2023, then the court convened on further days to address further defence pre-trial applications. Considering those further defence pre-trial applications, it was not necessary to finally rule on the current adjournment/stay application at that time, as the matter was being adjourned anyway to enable all the new defence applications to be argued. Such a ruling in the current matter only becomes necessary when all other matters have been dealt with and the matter would otherwise commence before the jury.

1. On each further occasion, the court enquired of the defence whether they had resolved outstanding requests for documents from the list of 574 requested, and on 6 April 2023 defence counsel indicated they were confident that they had the majority of what they had sought, and that they had forwarded any relevant documents to their forensic accountant. [55]

   [55]   T353, 6 April 2023.   

2. On 20 April 2023, defence counsel repeated that they were confident they had received all the documents they had requested, and the court could proceed on that basis subject to any contrary advice.[56]

   [56]   Transcript of hearing 20 April 2023.

3. As these other matters proceeded (as briefly listed below) the court periodically enquired with defence counsel as to the receipt of the documents they had sought and whether they had obtained instructions on them. On 5 May 2023, defence counsel responded that they had instructions on everything that they had received.[57]

   [57]   T981, 5 May 2023.

   Subsequent defence applications further delaying the commencement of trial

4. By way of brief summary:

5. An application was filed on 9 March 2023, five days prior to trial, for six separate trials.[58] The application also sought the exclusion of a substantial amount of discreditable conduct evidence concerning 68 pled topics of evidence.[59] Upon the conclusion of the evidence and submissions relating to the current matter, that separate trial discreditable conduct application was proceeded with. It was listed initially for five days of hearing from 17-21 April, however, continued for an extended period concluding on 26 June. The protracted course of that hearing is set out at [6]-[22] of the ruling delivered on 29 June, in R v Bell (No. 4) [2023] SADC 78.

   [58]   FDN 111 filed 9 March 2023, five days prior to the listed trial date of 14 March 2023. Interlocutory Application seeking severance and six separate trials.

   [59]   FDN 148 filed 14 April 2023, Amended Interlocutory Application in relation to Discreditable Conduct, paras 1-68.

6. At the direction of the court, all the other extant defence pre-trial applications for the exclusion of evidence:[60] one made in October 2022 and three further applications made between the day of trial 14 March 2023 and 5 April 2023, were consolidated into a single application representing all outstanding pre-trial matters that the defence were to that point pursuing.[61]

   [60]   FDN 13 filed 7 October 2022 re a record of interview and other matters, FDN 104 filed 7 March 2023 re expert evidence from witnesses Taylor and Summersides and some other matters, FDN 117 filed on the morning of trial 14 March 2023 objecting to the evidence of 43 witnesses on the grounds of relevance and inadmissibility, and FDN 138 dated 5 April 2023 for the exclusion of 83 categories of evidence on the basis of variously relevance, inadmissibility and s 34P of the Evidence Act.

   [61]   FDN 150, filed 14 April 2023.

7. Submissions in that matter were very protracted; with all submissions covering the admissibility of evidence proposed to be given by approximately 50 ‘non-expert’ and ‘non-ICAC’ witnesses concluding on 3 August 2023 and judgment delivered on 23 August 2023. The protracted course of that hearing is set out at [10]-[21] of the ruling in R v Bell (No. 6) [2023] SADC 112.

8. Other pre-trial matters have also taken up hearing time since 14 March 2023, including unsuccessful defence applications for questions of law to be referred to the Court of Appeal; see R v Bell (No. 5) [2023] SADC 90 and Bell v The King [2023] SASCA 86.

   Consideration

9. The court accepts for the purpose of this application the tender of all the filed affidavits.

10. The court has carefully considered all the material and submissions before it, and adopts but does not repeat, the discussion of the issues and the observations made about the evidence, the submissions and the matters traversed throughout these reasons.

11. The time originally sought by the original defence application has been made available in any event due to the time taken by the defence to argue the application itself and subsequent unrelated defence applications.

12. It is, however, appropriate to record the disclosure issues and their resolution for the purposes of the trial and any subsequent proceedings. It is also appropriate to record the course of these proceedings.

    Conclusions

13. In relation to the first primary disclosure complaint made by the defence:

14. ‘Late notice of the DPP’s reliance on the 11 August 2020 Overview (‘Appeal Overview’) in circumstances where it had not been the subject of consideration by the accused’s legal representatives or the accused prior to 14 March 2023 and where it contains numerous new allegations and references to documents not included in the Draft Overview version 2’;[62]

    1.There had never been any ‘reliance’ on that ‘Appeal Overview’ document by the DPP to particularise their case, rather that document was an early prosecution summary or overview that had never purported to reflect the entire evidential matrix of the case, but was provided for the assistance of the defence. The prosecution had repeatedly indicated that it was relying on the particularised Information and the statements filed in support of that Information.

    2.There was no ‘late notice’ of that document, rather it had been supplied on several occasions to the defence in 2020, over two years prior to the current trial date. The defence failed to recognise or read the document at the time.

    3.When shortly prior to trial, defence correspondence to the prosecution referenced a prior 2019 summary/overview, the prosecution reminded the defence in correspondence dated 6 March 2023 (over a week prior to the trial date) that there had been a subsequent summary/overview provided in 2020, repeated that the prosecution was not ‘relying’ on that document, and repeated that the prosecution case was as per the filed statements.

    4.The defence lawyers’ expressed stance to this court on this application that up until the week set for the commencement of trial (14 March 2023) they were basing their understanding of the case, the preparation of their defence, and their consideration of evidential matters to object to, on an earlier 2019 summary/overview document that never purported to represent the totality of the evidence, and was followed by the service on the defence of substantially more evidence in 2020;[63] rather than the filed statements, the subsequently served evidence, or anything else, is very difficult to understand. If in fact that was the approach taken by the defence lawyers to the preparation of the 2023 trial, it represents a fundamentally misconceived and inadequate way to approach the defence of a criminal prosecution.

    5.In all the circumstances, it is clear that there was, in any event, (a) no ‘late notice’ of the document as claimed by the defence, (b) no ‘reliance’ on that document by the prosecution as claimed by the defence, and (c) no ‘new allegations’ being made thereby, as claimed by the defence.

    6.The first primary complaint is entirely without merit.

    [62]   FDN 126 filed 21 March 2023, ground 1.

    [63]   Which indeed formed the basis for the defence application to reverse their prior election for a trial by judge alone. That application FDN 54 was filed on 23 January 2023, argued over several days in February 2023 and resulted in R v Bell (No.2) [2023] SADC 19, delivered on 28 February 2023.

15. In relation to the second primary disclosure complaint made by the defence:

16. ‘Failure to produce and disclose the ICAC Master Disclosure spreadsheet until a subpoena was issued and responded to on Thursday 9 March 2023 … The production of additional not previously disclosed financial material on Friday 10 March 2023 … (and) the identification of 420 items not previously disclosed that were described as being relevant or possibly relevant and produced on disc on Friday, 14[64] March 2023’;[65]

    [64]   This must be a typographical error as the Friday was 10 March 2023.

    [65]   FDN 126 filed on 21 March 2023, grounds 2-4.

    1.There was no ‘failure to disclose an ICAC Master Disclosure Spreadsheet’.

    2.The prosecution had been actively impeded in seeking an updated disclosure assurance from the ICAC by the 2022 defence stance that for the prosecution to do so would amount to contempt of court. This stance was underlined in late 2022 by defence counsel Mrs Shaw KC in open court declining to provide any assurance that the defence would not issue contempt proceedings or agitate contempt proceedings against the DPP or the individual prosecutors of this case, should the prosecution seek assurances about disclosure from the ICAC.[66]

    3.On 29 November 2022, this court rejected that defence stance and held that it would be legal for the prosecution to seek disclosure assurances from the ICAC.[67] On 6 December 2022, the defence foreshadowed an appeal. When the defence advised the court on 21 December 2022 that they would not appeal that decision, on the next day the prosecution requested that SAPOL seek an updated disclosure assurance from the ICAC. The ICAC commenced a comprehensive disclosure review of everything held, cross refenced to all prior disclosure.

    4.The review was completed on or about 6 March 2023. It was relayed promptly by the prosecution to the defence by 9 March 2023, together with copies of the 195 documents the ICAC thought had not been disclosed but considered 'relevant', and a further 230 which, although the ICAC considered not relevant, were disclosed anyway in case views were to differ as to their relevance.

    5.Of the 195 ‘relevant’ documents that were provided by 9 March 2023, many were multiple versions of the same email chains, and nearly all the financial documentation therein had previously been disclosed directly by the prosecution to the defence attached to the forensic accountant Summersides’ work file forwarded to the defence in June 2020. Accordingly, there were only a limited number of potentially relevant new documents, easily capable of being reviewed and considered in a short time.

    6.Of the 230 documents which the ICAC had indicated in their ‘assurance letter’ that they had deemed not relevant, but which they had provided anyway on the basis that they might be ‘potentially relevant’, many comprised email chains with numerous chain duplicates, the overwhelming majority comprising generic emails sent to all witnesses providing updates on the progress of the trial listing and responses about witness availability and which most, if not all had been released to the defence by the court under a subpoena returned by the ICAC on 19 June 2020.

    7.Of the 230 documents, the prosecution and the ICAC’s assessment was that there was no document of actual disclosable evidentiary substance, except for a statutory declaration of witness Jerkavits which was in identical terms to a statement by that witness previously disclosed to the defence, although it is recognised that opinions may legitimately differ, and the defence maintain there were relevant documents.

    8.Accordingly, most of the 230 documents had been earlier provided to the defence, many were repetitive generic emails, and the small number of remaining substantive undisclosed documents would have been easily capable of being reviewed and considered in a short time.

    [66]   R v Bell [2022] SADC 140 at [90], [108]-[109].

    [67]   R v Bell [2022] SADC 140 at [107]-[110].

17. In relation to the 574 further documents requested by the defence from the ICAC list, it shortly became apparent from defence counsel’s subsequent admissions and Mr Evans’ affidavit which I accept, that the defence were already in possession of a significant proportion of them, and that the remaining matters were of limited compass and easily reviewed.

18. It is unfortunate that in each of the above three instances the defence failed to check whether in fact had any of these documents, prior to claiming that they did not have them.

19. In the final analysis most of the material that the defence claimed had not been disclosed to them had in fact been previously disclosed to the defence some years ago. The limited amount of suggested relevant material that had not previously been either provided or disclosed by way of running sheet was, however, disclosed and provided to the defence by 9 March 2023, five days prior to the trial date. That limited quantity of material should have been able to be easily considered and any necessary instructions taken over the course of that five-day period prior to trial.

20. As to the overall adequacy of disclosure, as at the conclusion of submissions in relation to this application[68] there was no evidence to suggest that full and adequate prosecutorial disclosure had not been made.

    [68]   29 March 2023.

21. The application is dismissed.