R v Fitzpatrick (No 5) - [2019] NSWSC 976

Supreme Court

New South Wales

Medium Neutral Citation: R v Fitzpatrick (No 5) [2019] NSWSC 976
Hearing dates: 1; 2; 3; 4; 5; 8; 9; 10 July 2019
Date of orders: 10 July 2019
Decision date: 10 July 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
Refuse application to discharge jury

Catchwords: CRIMINAL PROCEDURE – Application to discharge jury – Non-disclosure of additional report of expert – report helpful to accused – whether non-disclosure vitiated pretrial ruling concerning admissibility of “bomb-making material” – innocent but unsatisfactory explanation for non-disclosure – no question of principle – no real risk of miscarriage by reason of non-disclosure
Legislation Cited: Evidence Act 1995 (NSW), s 137
Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22;
R v Fitzpatrick (No 2) [2019] NSWSC 836
Category: Procedural and other rulings
Parties: Regina (Crown)
Paul John Fitzpatrick (Accused)
Representation:
Counsel:
J. Tunks (Crown)
D. Price (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Conaghan Lawyers (Accused)

File Number(s): 2017/376874

Judgment

The day has been taken up with proceedings relevant to what became an application on behalf of the accused, Mr Fitzpatrick, to discharge the jury. The ground for discharge relates to the non-disclosure of an expert certificate by Mr Peter Ballard, a senior forensic chemist in the Chemical Criminalistics Unit, dated 3 November 2016.
That certificate is relevant to evidence the subject of my pre-trial ruling in R v Fitzpatrick (No 2) [2019] NSWSC 836. Part of that decision relates to material constituting exhibit voir dire 1. That material consists of three documents which have been referred to, at least today, as the “bomb-making material”. That material has now found its way into evidence and as Exhibits BQ, BR and BS respectively.
These reasons assume some familiarity with the reasons for my earlier ruling upon the admissibility of that material.

The report of 3 November 2016

Mr Ballard’s certificate which was admitted on the voir dire (Ex VD8) assesses contents of each of those exhibits from his expert standpoint. Concerning exhibit BQ which is entitled ‘Lathe how to make a bomb!!!*’, he points out what is obvious to any sensible reader of the document, and which was not lost on counsel or myself, that the document is meant to be humorous and does not provide any instructions as to the creation of an explosive device. Mr Ballard does not say this, but it is clear from reading it that at most it has over-elaborate instructions for making a box, and then suggests placing two grenades in the box to cause an explosion. I did allow myself to observe during the course of proceedings that if it is a joke, it is a very sick joke.
Exhibit BR is entitled “Drano Car Bomb!” and suggests that a car can be blown-up by a simple chemical reaction of inserting household cleaning products into the fuel tank in a flimsy plastic container. Although from a lay-point of view I felt unable to assess whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fitzpatrick (No 5)

Details

AGLC: R v Fitzpatrick (No 5) [2019] NSWSC 976
Case: [2019] NSWSC 976
Decision Date: 10 July 2019

CaseChat Overview and Summary

The case of R v Fitzpatrick (No 5) involved a criminal trial where the accused sought to discharge the jury due to the non-disclosure of an additional expert report by the prosecution. The trial was presided over by the Supreme Court of Victoria. The dispute centred on the implications of the non-disclosure of this expert report which the defence argued was helpful to their case, particularly concerning the admissibility of certain "bomb-making material" that had been previously ruled on by the court.

The primary legal issue before the court was whether the non-disclosure of the additional expert report had vitiated the pretrial ruling concerning the admissibility of the "bomb-making material". The court had to consider whether the failure to disclose this report constituted a breach of the accused's right to a fair trial, and if so, whether this breach was significant enough to warrant the discharge of the jury. Additionally, the court needed to assess the prosecution's explanation for the non-disclosure, which was described as innocent but unsatisfactory, and determine whether it had introduced a real risk of miscarriage of justice.

The Supreme Court held that while the non-disclosure was not a matter of principle, it did not introduce a real risk of miscarriage of justice. The court found that the prosecution's explanation, though unsatisfactory, was innocent. The court concluded that the non-disclosure did not vitiate the pretrial ruling on the admissibility of the "bomb-making material" and therefore did not warrant the discharge of the jury. The court found that there was no substantial risk that the non-disclosure could have affected the outcome of the trial adversely.

As a result, the application to discharge the jury was dismissed. The trial proceeded as planned, with the jury delivering its verdict based on the evidence presented, including the previously admitted "bomb-making material". The court's decision underscored the importance of adhering to disclosure obligations in criminal proceedings, while also recognising the necessity of assessing the impact of such non-disclosures on a case-by-case basis.

Orders