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

1. 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.

2. 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.

3. These reasons assume some familiarity with the reasons for my earlier ruling upon the admissibility of that material.

The report of 3 November 2016

4. 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.

5. 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 this was so, Mr Ballard says that in his opinion this mixture could not cause an explosion.

6. Exhibit BS is a document entitled “List of Useful Household Chemicals and Their Availability”. As Mr Ballard says, it lists 22 chemicals. It does not provide instructions for the manufacture of explosives although, from a scientist’s perspective, many of these chemicals may be used for this purpose. Some of them in combination and in the correct ratios might make a form of gunpowder. But no ratios are suggested in the document.

My earlier ruling

7. A general description of my understanding of the contents of the documents is set out in my earlier judgment. I think it fair to say that although I did not have the benefit of Mr Ballard’s opinions about the significance, or perhaps better put, lack of significance, of Exhibit BR and Exhibit BS, his general description of the documents is consistent with the description contained in my judgment; and, I think it fair to say, consistent with the understanding of counsel advanced during the course of the argument that preceded my pre-trial ruling.

8. As Mr Price of counsel, for the accused, then submitted, the explosive device the subject of these proceedings is a far more sophisticated device than anything that might be conjured by reference to these exhibits. It involved a degree of expertise, as the expert evidence I think discloses, by that I am referring to Mr Page’s report (Ex VD7), in its design, fabrication, assembly and detonation.

9. It is important I think to bear in mind the basis upon which I ruled that the documents were admissible. So far as these exhibits are concerned, my conclusions are expressed at paragraphs 25 and 28 of my previous judgment. I did not admit the evidence as tendency evidence. I did not admit the evidence as suggesting that in any way the accused was in possession of what might be regarded as a blueprint for the fabrication, assembly and detonation of the device which killed Mr Burrows. I said this (at [25]):

I am not satisfied that Exhibit Voire Dire 1 can only be admitted if the conditions for the admission of tendency evidence are satisfied. In my view it is admissible otherwise than as tendency evidence. The relevant state of mind of which it provides evidence, if accepted, is that the accused had knowledge that explosive devices could be improvised. This knowledge is relevant to the accused’s capacity to commit the crime, there being other evidence relevant to motive and opportunity.

10. So far as the question of whether the evidence should be excluded by force of s 137 of the Evidence Act 1995 (NSW), I said (at [28]):

I accept that there is some danger that the jury may misuse this evidence by giving it undue weight. However, I am of the view that this risk can be effectively mitigated by providing appropriate directions, including an appropriate direction regarding the proper approach to the assessment of a circumstantial case and a specific direction against reasoning in a tendency fashion in relation to the evidence of knowledge on the part of the accused provided by Ex VD1...assuming the jury accept that evidence as evidence of knowledge of improvised explosive devices and componentry.

The issue in the trial

11. I remind myself for the purpose of these reasons that there is one real and substantial issue for trial by the jury, and that is whether the Crown has proved beyond reasonable doubt that the accused is the perpetrator of this obvious, serious crime involving the murder of Mr Burrows. To that extent, given the circumstantial nature of the Crown case, questions of capacity, motive and opportunity may be taken to be relevant considerations for the jury in determining that ultimate fact.

The arguments of counsel

12. The emphasis of Mr Price’s argument in relation to discharge of the jury has been on what appeared to him, not unreasonably I might say, before he heard that the evidence led by the Crown, that given the obvious issue about the bomb-making documents which had been telegraphed months ago, and the potential significance of them as evidence in the Crown case, exhibit VD8 must have been deliberately withheld. This impression was reinforced by the consideration that three other expert certificates of Mr Ballard had been disclosed and served in accordance with the Crown’s duty of disclosure and the requirements of the Civil Procedure Act 1986 (NSW) in relation to the service of expert reports in advance of a trial.

13. Learned counsel also argued that the availability of Mr Ballard’s expert opinion about these matters at the time I made my pre-trial ruling, might have led to a different outcome, at least as a real possibility, if not in relation to the primary question of admissibility, then certainly in relation to exclusion by operation of s 137 of the Evidence Act.

14. The Crown submitted, acknowledging how unsatisfactory the non‑disclosure of Exhibit Voire Dire 8 is, that circumstance was not borne of any “wickedness” in the forensic sense, but, rather, of inadvertence; one might say - I interpolate - bungling on the part of the officers concerned, a matter to which I will return. That is to say, the Crown submitted that although unsatisfactory, the non‑disclosure was innocent and in any event, in substance, made no difference to the decision I made, and was not capable of making any difference to the decision I made, given that the narrowness of the basis of admissibility: if accepted, the material provided some evidence in relation to knowledge, and, having regard to the consideration that I have already referred to, there could be no suggestion that the contents of the bomb‑making material, in any way, informed, as I’ve said, the fabrication, assembly and detonation of the device which killed Mr Burrows.

The applicable principle

15. Mr Price also referred me to the decision of the High Court of Australia in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22. That case, was a sexual assault case. There were two substantive grounds of appeal to the High Court. One was a misdirection point about the significance of a late complaint by the victim. And the second related to the inadvertent leading of evidence in re‑examination of the complainant by the prosecutor asking questions which invited the giving of evidence which had been specifically excluded by the learned trial judge in a pre‑trial ruling.

16. In stating the principle to be applied by trial judges in deciding an application for discharge of the jury, the majority, Toohey, Gaudron, Gummow and Kirby JJ, said (at p 440):

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring, are inescapable. Much depends upon of the seriousness of the occurrence and the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.

Dawson J, who dissented in the result, said at (p 432):

Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that “a high degree of need for such discharge” must appear before a discharge will be ordered.

17. I acknowledge that the statement of principle by the majority is couched in the language of much greater flexibility than a “principle of necessity” and I will proceed on the basis that “no rigid rule can be adopted”.

The evidence

18. The sorry saga of what happened to Exhibit Voire Dire 8 has been fully set out in evidence led before me by the Crown this afternoon. I will say at the outset that no responsibility for the non-disclosure can be laid at the feet of Mr Tunks, the crown prosecutor, or his instructing solicitor, Ms Alison Hooper. And in complete fairness Mr Price accepts that they were both entirely unaware of the existence of Exhibit Voire Dire 8 until yesterday afternoon. The circumstances in which they became aware of its existence is set out in the affidavit of Ms Hooper sworn today read in the proceedings. She was not required for cross-examination.

19. Although perhaps the evidence of other witnesses may chronologically precede Ms Hooper’s acquisition of knowledge, I will deal with her affidavit first. She swears that the existence of Exhibit Voire Dire 8 first came to her attention in a conversation with the officer in charge, DSC Sinton, at about 4.20 yesterday afternoon. The topic of discussion was unrelated to Exhibit Voire Dire 8 or to the contents of the bomb making material but related to queuing, if I can put it that way, other witnesses whose evidence was expected to be led today and tomorrow.

20. During the course of that discussion DSC Sinton volunteered the existence of Exhibit Voire Dire 8 Ms Hooper informed the officer that the prosecution needed a copy of the statement and it would need to be disclosed. After the call Ms Hooper immediately spoke to Mr Tunks who forthwith telephoned Mr Price disclosing the existence of the additional Ballard report. By email Ms Hooper sought a copy, and an explanation for the non-disclosure. The copy was not provided until 8.09 am today, and by another officer Detective Sergeant Christopher Reay. I infer that no explanation for the non-disclosure was forthcoming at that time as it not related in Ms Hooper’s affidavit.

21. Detective Sergeant Reay was at the time of Mr Burrows’ death stationed in the Bathurst region and, like so many of the detectives, I infer, serving in this area, became involved in the investigation. He is currently attached to the State Crime Command in the Crime Agencies Unit and has been since February of this year. However because of his involvement in the investigation he has maintained an interest, and an involvement, in it. He has been present at court each day the trial has been running and has been assisting in queuing witnesses to be available to give evidence.

22. I need to recap that the existence of the bomb-making documents was discovered during the execution of a second crime scene warrant at the home of the accused on 15 and 16 October 2015. Detective Senior Constable Wilson found the documents not in a filing cabinet, as I had assumed for the purpose of my previous ruling, but in the drawer of a bedside table in the accused’s bedroom. It was with a bundle of other documents and some way down the bundle. In his mind anyway, for reasons that were never explained, he regarded it as being “coupled” with a surveyor’s certificate relating to properties nearby.

23. The potential significance of those materials was not lost on investigating police. DS Reay said he directed a uniformed officer on restricted duties to request an evaluation of the documents from Mr Ballard in about July 2016. His evidence is that the provision of the report by Mr Ballard sonn after 3 November 2016 was not ever entered in the police EFIMS system and therefore did not come to the attention of any officer involved in the investigation. Apparently, according to DS Reay’s evidence, and I interpolate the evidence of Detective Sinton, nobody missed it, notwithstanding the potential significance of the documents.

24. The existence of Mr Ballard’s new report came to Detective Sergeant Reay’s attention only yesterday afternoon when he was asked to arrange the attendance of Mr Ballard to give evidence here in Bathurst today. At that time Mr Ballard asked the officer to check how many statements he had given so he could make sure he brought all relevant documents with him, the latter I infer. It was only then that the officer consulted the EFIMS system, noticed that the job was recorded as not completed, but again I infer for abundant caution, he conducted a search of his emails which disclosed the email from Mr Ballard around November 2016 addressed to the uniformed officer, and copied to DS Reay, and to the officer apparently responsible for entry of such data on EFIMS. The report was attached in PDF form. When he became aware of this circumstance he informed DS Sinton of its existence and that officer, as I have said, passed the information on to Ms Hooper.

25. Detective Senior Constable Sinton gave evidence that he was unaware that another report had been commissioned from Mr Ballard, notwithstanding his appreciation of the potential significance of the bomb-making documents and his status as Officer-in- Charge. Accordingly, he could not realise that the report had not been provided.

26. Mr Ballard gave evidence. His evidence, as far as is relevant, is that his usual practice is to send his reports only by attachment to an email in PDF form. He accepted that it might be possible that from time to time he would send a hard copy of a report in the post but that was not usual. I accept that his usual practice was not to do that. He could not remember such an occasion. His usual practice was simply to send the PDF as an attachment to an email. In modern business practice not everyone follows up an email attaching a document with a hard copy in the post.

Finding of reason for non-disclosure

27. It is not put to either of the officers that they are lying in their explanation of what happened and I infer that they are telling the truth about the sorry circumstances in which this matter was not disclosed. I say “sorry circumstances” because, frankly what happened here is entirely unsatisfactory. This is a matter of great consequence. A member of the community is standing trial for murder of another member of the community. These events occurred in a small nearby town and have had a very substantial effect upon the whole community. It seems incredible that the officers charged with the investigation, notwithstanding its undoubted complexity, have bungled this aspect of the investigation so completely.

28. However that may be, I accept that there was no deliberate withholding of the report and that, as occurs in life, when the choice is be between a conspiracy and a “stuff up”, nine times out of ten it is a “stuff up”. That reality does not make it any more satisfactory. Indeed in the case of officers who no doubt pride themselves on their professionalism, given, as I have said, the seriousness of this matter, it is wholly unsatisfactory.

Evaluation

29. I move on, however, to consider the central question, whether this inadvertent and potentially prejudicial conduct, requires a discharge of the jury in this case. I accept the argument of Mr Price, that the report of Mr Ballard, which is Exhibit Voire Dire 8, is capable of affecting the weight which the jury might afford the bomb‑making material. I adhere to the view that it is relevant, on the basis explained at [25] of my earlier judgment. There were always going to be issues for the jury’s consideration relevant to their acceptance of this evidence. As I said in my earlier judgments, entirely conventionally I think, questions of whether or not the jury will accept the evidence, are irrelevant to its admissibility. Evidence is admitted on the assumption that the jury will accept the evidence, which assumption is not always of course, justified by the result.

30. The question really reduces to whether Exhibit Voire Dire 8 makes any significant difference to the evaluation that I made for the purposes of s 137 of the Evidence Act. I suppose it follows that if Mr Ballard’s evidence is relevant to weight, it is relevant to the probative value of the evidence. But it seems to me that the diminution in weight that might be afforded the evidence when viewed through the prism of his expert opinion, does not lead to the situation where s 137 is engaged in a way which requires - or would have required had it then been available - the evidence to be excluded. Both its admissibility and its probative value for the purpose of s 137, are essentially legal questions although the s 137 question, as I have said, involves an evaluation of different aspects of the same evidence.

31. The risk, as I recognised in my earlier judgment, is that the jury might give the evidence undue weight. As I said, It was always going to be necessary that careful directions be given in relation to the use that the jury could properly make of the bond‑making material. I will not repeat what I have set out above.

32. Given where we are in the trial and the body of evidence that has been led so far, I am still of the view that the evidence requires directions as to its limited utility. That is to say, it goes to one issue and one issue only, which is Mr Fitzpatrick’s knowledge, which in itself, is relevant to his capacity to design, fabricate and detonate the rather sophisticated device that killed Mr Burrows. It is not decisive of it.

29. The evidence of Mr Ballard contained an Exhibit Voire Dire 8 will assist the defence in their arguments in relation to the bomb-making material and will assist the me in giving pertinent directions to the jury about that aspect of the evidence.

30. Looking at the matter through the factors referred to by the majority in Crofts, although the non-disclosure through bungling is a serious matter the relevant question is the seriousness of that occurrence in the context of the contested issues. Looked at objectively, as unfortunate as it is, I do not regard it as a very serious matter in the sense that it overall does not change the forensic landscape of the contest in a major way.

31. The non-disclosure has come to light well into the trial when there has been much evidence led on different topics. It does not seem to me that at this stage there has been any undue focus on the bomb-making material and I am not persuaded that it has emerged as decisive evidence at this time.

32. As I have said the misconduct here is not deliberate and I remain of the view that judicial directions can overcome any apprehended and undue prejudicial impact of the bomb-making evidence.

33. It should be emphasised in regard to that last factor that the inadvertent and potentially prejudicial event was the non-disclosure. In a sense the non-disclosure does not have to be explained to the jury at all, rather the report will be dealt with in its place when dealing with all of the evidence of Mr Ballard and the extent to which it supports or assists the accused will be drawn to the jury’s attention not only by me but I am sure by Mr Price.

Conclusion and order

38. In all of the circumstances I am not persuaded that the non-disclosure of Exhibit Voire Dire 8, I repeat, as very unsatisfactory as it was, is capable of depriving the accused of a fair trial.

39. For these reasons I refuse the application to discharge the jury.

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Decision last updated: 01 August 2019