R v Hansen

[2022] NSWDC 746

District Court

New South Wales

Medium Neutral Citation:

R v Hansen [2022] NSWDC 746

Hearing dates:

5 - 8 September 2022

Date of orders:

8 September 2022

Decision date:

16 September 2022

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

See [161]

Catchwords:

CRIMINAL LAW – evidence – case management orders – statutory disclosure requirements – failure to comply with disclosure requirements – application to exclude evidence – relevant considerations – prejudice – evidence excluded – other procedural rulings

Legislation Cited:

Criminal Procedure Act 1986 (NSW) ss 134, 140, 141, 142, 143, 144, 146, 148, 294CB

Evidence Act 1995 (NSW), ss 137, 192A

Cases Cited:

R v Al Batat & Ors (No 6) [2020] NSWSC 1079

R v Rice (No 4) [2014] NSWSC 1525

R v Sharpe (No 2) [2021] NSWSC 22

R v Steele [2021] NSWCCA 74.

Category:

Procedural rulings

Parties:

Director of Public Prosecutions (Crown)
Michael John Hansen (Defendant)

Representation:

Counsel:
Mr S Morrison (Solicitor Advocate – Crown)
Ms R Mitchell (Defendant)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Hugo Law Group (Defendant)

File Number(s):

2020/00336591

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant, or which is likely to lead to the identification of the complainant, anonymised in these reasons as EW.

Judgment

Background/Offences

1. Michael John Hansen (the accused) stands indicted with four counts, being that he:

1. Between 1 January 2009 and 31 May 2009, at Tamworth in the State of New South Wales, did assault EW, a person then under the age of 16 years, namely 14 or 15 years of age, and at the time of such assault did commit an act of indecency on EW.

2. Between 1 January 2009 and 31 May 2009, at Tamworth in the State of New South Wales, did assault EW, a person then under the age of 16 years, namely 14 or 15 years of age, and at the time of such assault did commit an act of indecency on EW.

3. Between 1 January 2009 and 31 May 2009, at Tamworth in the State of New South Wales, had sexual intercourse with EW, a child then under the age of 16 years, namely 14 or 15 years, in circumstances of aggravation, namely EW was under the authority of the accused.

4. Between 1 January 2009 and 31 May 2009, at Tamworth in the State of New South Wales, did commit an act of indecency towards EW, a child then under the age of 16 years, namely 14 or 15 years of age, in circumstances of aggravation, namely EW was under the authority of the accused.

2. As is described in more detail below, the Crown made (very) late disclosure of additional evidence on which it wished to rely. The defence objected to this material and submitted it should be excluded under s 146 of the Criminal Procedure Act 1986 (NSW) (‘CPA’) and/or s 137 of the Evidence Act 1995 (NSW) (‘EA’). The Crown also served a Tendency Notice on 24 August 2022, seeking to rely on parts of the late disclosed evidence (together with evidence which had previously been disclosed but was not previously said to be tendency evidence) as tendency evidence. The defence objected to this notice on the bases that it was not served within a reasonable time as prescribed by the rules and that the evidence sought to be relied on was not able to be used as tendency evidence in the sense required under the EA and by the authorities. There were several other minor evidentiary rulings sought.

3. The trial of the matter was due to commence on Monday 22 August 2022 in Tamworth before a jury of 12. By reason of the matters that were required to be determined before hearing due to the late disclosure, and on the premise that the pre-trial hearing on the preliminary issues would take 1 day, the start date of the trial was pushed back to Tuesday 30 August 2022, with Monday 29 August set aside for the pre-trial hearing.

4. Regrettably, the pre-trial hearing took significantly longer to complete than estimated. One of the reasons for that (although not the major reason) was that there were several interruptions to the hearing, one of them significant in time, when a trial before me in which a jury was deliberating had to be interposed.

5. The pre-trial hearing concluded late on Thursday 8 September 2022. The Tamworth circuit was to finish on Friday 16 September 2022. The trial had an estimate of 5-7 days. Because of this and other matters in the list the last week of the circuit, the hearing of the trial before a jury could not be certain to be concluded and was vacated.

6. I indicated my rulings to the parties at the conclusion of the hearing on 8 September 2022 but said that substantive reasons would take time to prepare. These are those reasons.

7. Because of the notoriety of the accused, the fact that the trial was to take place in a relatively small country centre from a small jury pool and on a joint application, on the second day of the pre-trial hearing, I made an order prohibiting the publication of the evidence and submissions on the pre-trial hearing and my reasons until the empanelment of the jury.

The Crown Case

8. A summary of the Crown case from the Crown Case Statement is that:

1. The complainant was born in Tamworth and was 14 - 15 years of age at the relevant times of offending.

2. The accused and the complainant worked together at Tamworth City News in 2007 - 2008 for around 6 - 8 months. The accused was around 19 or 20 years of age.

3. The complainant was involved with the Tamworth Musical Society since around 2001. The accused was also involved with the Tamworth Musical Society.

4. The complainant and his family lived at XX XX Street, East Tamworth. The accused lived nearby at XX XX Street, Tamworth. Rehearsals for the Tamworth Musical Society took place at the Church on Werris Creek Road.

5. The accused and complainant were often in the same musicals. The accused would, on occasion, take the complainant to rehearsals and drop the complainant home.

Offending

1. In May 2009, Tamworth Musical Society performed a production of the musical ‘Beauty and the Beast’. The accused and complainant were both in the show. Rehearsals were generally started 5-6 months before the production.

2. On one occasion, either before or after a rehearsal for this production, the accused and complainant were in the accused’s car and at the Tamworth Lookout. The complainant was on the phone to his grandmother and felt uneasy about the accused (There is an objection to this evidence by the defence. As I explain below, I will allow it to be led by the Crown).

3. Another night driving home, the accused asked the complainant to come to his house, and the pair proceeded there. The complainant sat on the lounge and the accused offered him a beer. He was 14 at the time.

4. The accused sat next to the complainant and kissed him on the lips (Count 1). The complainant froze. The accused took the complainant to his bed, with the accused laying down.

5. The accused unzipped his pants and removed his penis, then tried to guide the complainant’s head towards his genital area, indicating that it would be for oral sex (Count 2). The complainant moved his head away.

6. The accused then unzipped the complainant’s pants and began sucking on his penis. The complainant froze out of fear (Count 3).

7. After a period of time, the accused stopped and lay next to the complainant. The accused masturbated himself until he ejaculated (Count 4). The accused then obtained a towel, wiped his genitals and offered it to the complainant. The complainant declined.

8. The accused then took the complainant home. The complainant was confused and vomited.

9. On a later occasion, the accused sent a text message to the complainant asking if he had had sex before. The complainant lied and said yes.

10. At an after party for the same production, the complainant, accused and an unknown third person took a taxi home. On leaving the cab near a park in East Tamworth, the accused asked the complainant if he wanted to come to his house to watch the new Harry Potter movie. The complainant declined. (The defence object to this evidence but as I explain below, I will allow it to be led).

11. The complainant disclosed the alleged offending to a friend during a mathematics class at school. The complainant was distraught while disclosing. This likely occurred in 2009, when the two were in year nine.

12. In 2012, the complainant and the accused exchanged messages via Facebook Messenger. In those messages, the accused implicitly referred back to their sexual encounter in 2009 and also flirted with the complainant. (This is part of the late disclosed evidence and the defence seeks that it be excluded under s 146 of the CPA and/or s 137 of the EA).

13. In 2014, the complainant disclosed to his mother that the accused ‘had tried something with him, but nothing happened as he didn’t want it to happen.’

14. In June 2019, the complainant was admitted to hospital. On his release, the accused again spoke to his mother and disclosed that during the occasion he had spoken about previously, the accused had removed his pants and done something sexual.

15. On 5 July 2019, the complainant attended Tamworth Police Station and reported the above to SC Woolnough. The incident was recorded on the COPS system and referred to detectives for further investigation. The complainant made a statement on 2 October 2019.

16. After further investigation, on 21 September 2020, DSC Belinda Vallette and DSC Darren Way attended the accused’s home in Marrickville, NSW. Their interactions with the accused were recorded on body-worn video.

17. In that interaction, the accused stated the following:

1. He was in the musical society for many years.

2. He remembers being in the production of ‘Beauty and the Beast’.

3. He knew the complainant’s parents and they asked him to drop the complainant home.

4. He doesn’t recall ever picking the complainant up but did drop him home.

5. He doesn’t recall the complainant being in his house.

6. He denied the allegations as put to him.

18. On 25 November 2020, DSC Vallette contacted the accused and asked him to come to the Tamworth Police Station.

19. The following day, 26 November 2020, the accused attended Tamworth Police Station, where he was arrested and cautioned in the matter. He declined the opportunity to participate in an ERISP.

Procedural Chronology

9. The following chronology of the proceedings is drawn from the defendant’s submissions, which the Crown accepts is factually accurate.

10. The offences on indictment are alleged to have occurred between 1 January 2009 and 31 May 2009.

11. The complainant reported these allegations to the police on 5 July 2019.

12. The complainant made a statement to police on 2 October 2019. This statement was in evidence before me as part of Exhibit VD 1A.

13. The accused was spoken to by police at his residence on 21 September 2020 and he denied the allegations in a recorded conversation. A transcript of that conversation was before me as part of Exhibit VD 1A.

14. The accused attended the Tamworth Police Station at the request of police on 25 November 2020 and was arrested and charged in relation to this matter.

15. Following the EAGP Charge Certification and Case Conference stages of the prosecution, Mr Hansen was committed for trial from the Local Court in Tamworth on 30 June 2021.

16. Mr Hansen was arraigned on the four counts, which appear on the current indictment, at the Tamworth District Court on 16 August 2021. Mr Hansen pleaded not guilty to each of the counts on the indictment.

17. The trial was listed to commence on 15 August 2022 at Tamworth District Court. The Court listed the matter for Readiness Hearing, in accordance with Practice Note 18, on 21 June 2022.

18. On 17 June 2022, the prosecution served a Notice of Prosecution Case in accordance with s 142 of the CPA. This was subsequently filed on 27 June 2022. Relevantly, the outstanding brief items listed were:

1. Statements from other people involved in plays (see 7 of complainant statement).

2. School records in respect of math class with Cutts.

3. Hospital records of complainant.

4. Apartment rental records and photos.

5. Statement of Geraldine Cutmore.

19. On 22 June 2022, the defence filed and served a notice in accordance with s 143 of the CPA. Relevantly, it identified points of law which the accused intended to raise, in the following terms:

1. The admissibility of portions of evidence that includes:

1. Irrelevant evidence

2. Opinion evidence

3. Hearsay evidence

4. Unfairly prejudicial evidence

5. Evidence which is misleading or will result in an undue waste of time.

2. The accused person cannot settle the points of law to be raised until the prosecution have served a complete brief of evidence.

20. On 26 June 2022, the prosecution filed and served the first Tendency Notice. The tendency notice asserted a “cross-tendency” between each of the counts on the indictment.

21. On 27 June 2022, the prosecution served additional brief items, being:

1. Statement of Geraldine Cutmore dated 20 June 2022; and

2. Statement of Brooke Jones dated 6 June 2021 (in notebook form) and a transcribed version of that statement dated 3 August 2021.

22. On 28 June 2022, the defence filed and served a Key Issues Statement and Readiness Forms which indicated that the admissibility of the tendency evidence would need to be resolved as a pre-trial issue.

23. On 28 June 2022, the matter was listed for a Readiness Hearing. A s 140 CPA conference had not then occurred.

24. A phone conversation between the Solicitor Advocate and counsel for the accused occurred during the first week of August 2022 which ostensibly met the s 140 requirements, however, there were limited issues able to be resolved as a result of the outstanding brief items.

25. At the Readiness Hearing, the Court made an order for the filing of submissions in relation to the Tendency Notice served by the Crown. The Crown was to file and serve submissions 7 days prior to the trial (being 15 August 2022). The defence were to file and serve submissions in response 3 days before the commencement of the trial.

26. On 7 July 2022, the defence requested by email that the prosecution serve any outstanding brief items.

27. On 25 July 2022, a further email was sent requesting that the prosecution serve any outstanding brief items. The following items were served that day:

1. Statement of the complainant’s father dated 26 March 2021;

2. Statement of the complainant’s grandmother dated 2 April 2021;

3. Birth certificate of the complainant; and

4. Documents relating to the Tamworth Musical Society and the 2009 production of Beauty and the Beast.

28. On 2 August 2022, the defence filed an amended Key Issues Statement confirming that objection was taken to the tendency evidence and resolution of that matter remained as a pre-trial issue.

29. On 3 August 2022, the matter was listed for a further Readiness Hearing. The defence raised the issue of outstanding brief items at this mention. The Court indicated the trial was likely to commence on 22 August 2022, having regard to the running of the other trials listed within the sittings.

30. On 8 August 2022 at 4:45pm, the Crown advised the Court and defence by email to my Associate that they no longer relied on tendency evidence.

31. On 11 August 2022, further brief items were served by the Crown including:

1. Student attendance records relating to the complainant;

2. Statement of WG dated 28 June 2022;

3. Statement of JB dated 9 August 2022; and

4. Criminal history of Michael Hansen (in response to a defence enquiry as to any evidence in possession of the prosecution which would be used to rebut evidence of good character, if adduced by the defence at trial).

32. On 15 August 2022, being the first day of the Tamworth circuit sittings, the matter was again mentioned and the Court was advised that there still appeared to be outstanding brief items. The Court indicated that unless all brief items were served by the end of the week (being 19 August 2022), the prosecution were to have the matter relisted with a view to dealing with the outstanding items.

33. On 16 August 2022, the Prosecution served the hospital records relating to the complainant’s admission to hospital on 29 June 2019.

34. On 17 August 2022, the defence wrote to the prosecution and formally identified the outstanding legal issues as they were able to be identified at that time.

35. On 18 August 2022, the Crown served further outstanding brief items including:

1. Statement of DSC Vallette dated 17 August 2022; and

2. Photographs of the Bourke Street unit.

36. On 24 August 2022, my Associate emailed the parties to advise that the trial would commence at 10:00am on 29 August 2022.

37. On 24 August 2022 at 11:40am, the prosecution served a further statement of the complainant dated 24 August 2022 and a series of photos of messages apparently from the complainant’s phone. There had been no mention of the possibility of further messages between the accused and the complainant, or that requisitions had been made in respect to the complainant’s phone, before this time.

38. At 11:48am on 24 August 2022, the prosecution served by email an additional statement from DSC Vallette dated 22 August 2022 relating to the messages obtained from the complainant. It was indicated at that time that the prosecution would file and serve a new Tendency Notice in light of the additional evidence from the complainant. This was served at 2:07pm on 24 August 2022 and filed shortly thereafter.

39. At 4:12pm on 24 August 2022, the prosecution served a statement of DSC Vallette dated 22 August 2022 relating to attempted ‘covert calls’ which occurred in September 2020. The defence says that this statement was only ever produced in response to a defence request for disclosure after discovering evidence of covert calls in material obtained under subpoena to the NSW Police Force. It did not arise as a result of the officer in charge voluntarily disclosing the information.

40. On 25 August 2022, the matter was mentioned before me. The late service of material and the filing of a second Tendency Notice was brought to the Court’s attention. At that time, I made it clear that I required an explanation for the late service of the material by the Crown, either by the Officer in Charge (OIC), DSC Vallette, or another appropriate person.

41. The trial was adjourned to commence on 6 September 2022 with legal argument to be heard on 5 September 2022. The hearing of the pre-trial legal argument was estimated to require a 1-day hearing only.

42. The defence submits, and I accept, that the only reason the trial date was moved to 6 September 2022 was as a result of the late served evidence and renewed reliance on tendency evidence by the prosecution.

43. On 26 August 2022 at 5:16pm, the prosecution served an additional statement from DSC Vallette dated 25 August 2022 which purported to explain the delay in obtaining messages from the complainant’s phone as well as two documents containing conference notes. These conferences were apparently held on 19 August 2022 and 25 August 2022.

The Late Disclosed Evidence

44. The defence objects to the admissibility of three items of evidence served on the defence on 24 August 2022. Those items (which I will refer to as the late disclosed evidence) are:

1. The statement of the complainant dated 24 August 2022;

2. The photographs of the complainant’s mobile phone and video recording of the conversation between the complainant and DSC Vallette during which those photographs were taken; and

3. The statement of DSC Vallette dated 24 August 2022.

45. The defence submits that the evidence should be excluded pursuant to s 146(2) CPA and/or pursuant to s 137 EA.

46. The most significant of the late disclosed evidence is that evidence dealing with the Facebook Messenger messages apparently between the accused and the complainant said to be from the complainant’s phone. The Crown says these messages were sent on the Facebook Messenger application in 2012 between the complainant and the accused.

45. The OIC, DSC Vallette, used body worn video to film her and the complainant going through a phone and viewing messages said to have been on the complainant’s Facebook Messenger app and from a person named “Mike Hansen”. The OIC took photographs of the messages she regarded as relevant. I make the observation as to her taking photos of messages she regarded as relevant as she accepted that she did not take photos of all of the messages in that thread (T 97.43-45)

46. The photographs of the messages taken by the OIC are set out below:

Issues to be Determined

The Late Disclosed Evidence

54. The defence submits that the Court should exclude the late disclosed evidence under s 146 CPA. They submit it is not in the interests of the administration of justice to waive the pre-trial disclosure requirements in this case, pursuant to s 148 CPA. Those sections provide:

s 146 Sanctions for non-compliance with pre-trial disclosure requirements

(1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division.

(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed by or under this Division.

(3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for pre-trial disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.

(4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent an accused person adducing evidence unless the prosecutor has complied with the requirements for pre-trial disclosure imposed on the prosecution by or under this Division.

(5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).

s 148 Court may waive requirements

(1)  A court may, by order, waive any of the pre-trial disclosure requirements that apply under this Division, but only if the court is of the opinion that it would be in the interests of the administration of justice to do so.

(2)  The court may make such an order on its own initiative or on the application of the prosecutor or the accused person.

(3)  An order may be made subject to such conditions (if any) as the court thinks fit.

(4)  The court is to take into account whether the accused person is represented by an Australian legal practitioner when considering whether to make an order under this section.

(5)  The court is to give reasons for the making of an order under this section.

55. The defence submitted that there has been an ongoing failure on the part of the prosecution to comply with Case Management Orders and legislative requirements.

56. As can be seen from the defence only objecting to the identified late served material and not all material that has been served in contravention of the case management requirements, the defence submits that it has not taken issue with late service of material to the extent they are possibly able to deal with any issues that have arisen from that material. The material objected to was served on 24 August 2022, being, at best, two working days before the trial was due to commence and, at worst, served after the date on which the trial was originally listed to commence.

57. The defence submitted that Practice Note 18 applies to this trial. They refer to the Standard Directions at paragraph 19 of the Practice Note which states, in part:

Standard Directions

Unless the Court otherwise orders, the standard directions that are to apply at the arraignment are:

…

(c) In the case of State matters, the prosecution is to file and serve on the accused person, no later than eight weeks prior to the date fixed for the Readiness Hearing, an affidavit by the police officer or law enforcement officer in charge of the case which:

(i) confirms compliance with the duty of disclosure as set out in s 15A of the Director of Public Prosecutions Act 1986 (NSW); and

(ii) details any further evidence the police are yet to obtain.

…

(f) The prosecution is to file and serve on the accused person, no later than one week prior to the date fixed for the Readiness Hearing, the notice of the prosecution response to the defence response in accordance with s 144 of the CP Act.

(g) If the prosecution intends to adduce tendency and/or coincidence evidence pursuant to ss 97 or 98 of the Evidence Act 1995 (NSW), notice in writing must be given to the defence no later than six weeks prior to the date fixed for the Readiness Hearing.

58. The defence notes that the prosecution has never filed and served an affidavit from the OIC which confirms they have complied with their ongoing duty of disclosure, nor had they properly identified what evidence they were yet to obtain.

59. The defence also refers to s 144 CPA which applies to these proceedings. That section relevantly states:

s 144 Prosecution response to defence response

For the purposes of section 141(1)(c), the notice of the prosecution response to the defence response is to contain the following –

…

(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence,

(f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution.

60. The defence notes that the prosecution has never filed and served a response pursuant to s 144 CPA, nor have they complied with the relevant obligations outlined therein.

61. In order to properly determine whether the late disclosed evidence should be excluded, it needs to be considered in detail. The defence submits that the relevance and admissibility of the evidence is a matter to be taken into account, but the principal question under s 146 CPA is fairness - in this case, to the accused by reason of the failure of the Crown to comply with its disclosure obligations and the prejudice caused to the accused by the late disclosed evidence.

62. The complainant provided a statement to police on 2 October 2019, having reported this matter to police on 5 July 2019. In that statement, he makes mention of communicating with the accused via text message following the alleged commission of the offences. His statement reads at paragraph 12:

…Michael text me later asking me if I had sex before, I think I lied and say yes

63. The defence submits, and I accept, that this is the only reference in his statement to any form of communication with the accused by phone, text message or other electronic messaging services either before or after the alleged sexual contact.

64. On 17 August 2022, the defence wrote to the prosecution with respect to potential outstanding legal issues in this trial. The email relevantly reads:

…can you also confirm that the Crown will not lead evidence of the text message the complainant asserts was sent to him after this incident enquiring as to his sexual experience. Could you also confirm that you would not be adducing evidence from Para 7 of the complainant’s statement relating to someone suggesting the accused “could have a disease” and that the complainant should stay away from him.

65. This email raised the defence position that the purported text messages, which have never been served, would infringe s 294CB of the CPA. As there had been no previous notice from the prosecution of an intention to seek leave to adduce evidence which clearly relates to the sexual experience of the complainant, this had not been identified as a pre-trial issue by the defence. I note that I deal with this issue below.

66. The defence did not receive any response to this enquiry until 24 August 2022 after the late disclosed evidence was served. At that time, it was indicated that the prosecution would seek to rely on the evidence of those text messages. It should be observed, this text message (or indeed any text messages between the accused and the complainant) has never been recovered and, due to the effluxion of time and the complainant having a different phone, may not be able to be recovered.

67. The evidence on the pre-trial application now shows that it appears that this disclosure as to sexual experience in an apparent text message has no connection to the Facebook messages contained in the late disclosed evidence purporting to have been sent by the accused in October 2012.

68. On 17 August 2022, DSC Vallette provided a statement relating to school records for the complainant. This statement was served on 18 August 2022 by a solicitor at the ODPP.

69. Paragraph 9 of that statement states:

[The complainant] also made reference to some messages that he had through the Facebook Messenger application some years ago with HANSEN. [The complainant] had “blocked” HANSEN and therefore the message thread is unable to be re-captured.

70. Prior to the pre-trial hearing, the prosecution did not disclose when the complainant “made reference” to those messages. Nor did it disclose how they formed a view that “[the complainant] had “blocked” Hansen” or how they arrived at a conclusion that the messages are unable to be recaptured. During the pre-trial hearing, the OIC gave evidence that she had been told by the complainant, probably in 2019 or in 2020, that the accused had blocked him on Facebook and that this meant that messages between them could not be retrieved (T 18.48). She says she checked this with an unnamed police technical officer who, she said, originally confirmed this was the case (T 19.24-29). She did not seek access to, or seize, the complainant’s phone, or take any other steps to see if any messages between the complainant and the accused could be retrieved.

71. The defence also noted that the disclosure in the statement of DSC Vallette does not reflect that the complainant disclosed to police that the conversations in the Facebook Messenger application were of a sexual nature or that they related in any way to the allegations the subject of the trial.

72. In a further statement dated 24 August 2022, DSC Vallette states at paragraph 4:

When I spoke with [the complainant] and obtained a statement from me (sic), he spoke about messages that he had with Michael Hansen about the sexual assault.

73. The defence submitted, and the evidence establishes, that this statement shows that DSC Vallette was aware of the potential for messages to exist as of October 2019 when the complainant made his first statement. That must be right because the first and only statement she had taken from the complainant before 24 August 2022 was the statement of 2 October 2019. As I have observed above, she did nothing to progress the investigation of those messages as she simply accepted that if someone is “blocked” on Facebook, such messages cannot be retrieved.

74. The defence submits, and I accept, that the statement from the OIC also shows that she formed a view that the complainant had looked through his phone and could not find the messages. This was confirmed in her evidence at T 32.16-17. There was never any attempt by her before 24 August 2022 to seize or inspect the phone that had been in the complainant’s possession since July 2019 on the basis that the OIC accepted that the complainant had been unable to locate them after that date.

75. The defence submitted, and I accept, that as the OIC was made aware of the potential existence of these messages in July 2019, there was no reason to justify why the phone was not inspected or seized at any time in the nearly three years of investigation into this matter. The OIC accepted she had the power to seize the phone as it potentially contained evidence: see T 101.3-5.

76. It should also be noted that on 7 September 2020, the OIC swore an affidavit in support of obtaining a surveillance warrant for the accused’s phone. In that affidavit at [21] she deposed:

[The complainant] tried to distance himself from HANSEN after the incident however they remained friends on the social media platform Facebook. Over the years they have on occasions exchanged messages through the Facebook Messenger application however HANSEN has since blocked [the complainant]….

77. Again, this shows evidence of the OIC knowing of the possible existence of Facebook Messenger messages between the accused and the complainant, but nothing was done to further investigate it. Nor was that knowledge disclosed as a possible relevant matter to the offending.

78. The prosecution served a conference note between the Solicitor Advocate and the complainant of 19 August 2022. It relevantly states (“E” being the complainant and “SM” the Solicitor Advocate):

E – Was expecting a phone call from [Det Vallette] to talk about some text messages and haven’t heard from her.

SM – we will follow up with her

E – can you tell me why?

SM – unfortunately we will have to get Belinda to talk to you about that

E – well having those will be good they show everything

79. The prosecution also served a second conference note between the Solicitor Advocate and the complainant of 25 August 2022 which relevantly states:

SM - You say in messages, have a look at para 12 – third last sentence, do you know from memory when that message sent or received?

E - 10 minutes after I got home 20 tops.

SM - What medium?

E – Text.

SM - Same number?

E – No.

SM - Phone same?

E – No.

SM - Do you still have that phone?

E – No.

***

SM - Ask you about what happened yesterday when spoke to det, do you remember an exchange where you said that message was deleted and then he blocked me later?

What message

E - Talked about sex, when I went back after report, when I went back the first time that first message was gone, when I went back again, I was blocked completely, I think the account that that is from is deleted now, he’s changed the profile pic, now says this user is no longer available.

SM - Is the message deleted did you see that yesterday?

E – Y.

SM - So you thought deleted but was there?

E – Y.

SM - What did it say?

E - Do you remember anything about sex lol I think was at the end of it.

80. The reference to paragraph 12 in that conference note is a reference to paragraph 12 of the complainant’s statement of 2 October 2019. This is a reference to the text message the complainant says was exchanged with the accused after the alleged offending.

81. The defence submits that this evidence - when looked at in combination with the statements of the complainant and DSC Vallette, both dated 24 August 2022 - while purporting to produce messages relevant to this trial, do not explain why they were not investigated prior to 24 August 2022. I accept this submission. There is no explanation on the evidence - other than an untested acceptance that if someone is blocked on Facebook, messages on the Facebook Messenger application cannot be recovered - as to why a proper investigation of the possible existence of Facebook messages never took place.

82. The prosecution submits that whilst the failure to disclose the material was “totally” and “utterly unacceptable” (T 1.50 and T 160.24) and the evidence is “imperfect” (T 205.26 and T 212.12), this evidence is of significant probative value and that no prejudice arises as a result of it being admitted. The defence response was that this must be seen in the context of the Crown completely ignoring its pre-trial disclosure obligations and the defence having a total of 2 days before the trial was scheduled to commence on 29 August and 7 working days before the commencement of the “effectively” adjourned trial, to 5 September, to consider the evidence now disclosed. Further, the defence had a period of 48 hours to consider the evidence upon receiving the prosecution submissions.

83. The defence also points to the following matters that arise from the evidence at the pre-trial hearing, including from the OIC:

1. The statements of DSC Vallette and the complainant dated 24 August 2022 both assert that the conversation purported to be between the complainant and the accused occurred on 24 October 2012;

2. There is no date captured in the images of the message exchange relied upon by the Crown. There is no date for the message conversation contained within the video recording of the messages being extracted;

3. The video recording identifies DSC Vallette saying that she cannot locate a date for the conversation while the phone is being inspected;

4. There has been no disclosure as to how the date of 24 October 2012 appears in the statements of both witnesses;

5. The messages clearly commence part way through a conversation. Neither the photos nor the video show the full communications purported to be between the accused and the complainant either before or after the ones photographed. In cross-examination, the OIC accepted that there were other messages in this thread, but she did not read them or copy them (T 97.47 – 98.6). The defence points out that none of the content of the phone is visible in the recording due to the angle and distance at which the camera was placed. Rather, the defence submits that the prosecution have ‘cherry picked’ a portion of the conversation and taken a comment in relation to sex, which may be completely out of context in the absence of the whole of the message thread;

6. The phone of the complainant has never been seized. The defence have had no opportunity to inspect the phone or obtain the entirety of the alleged communications. The defence cannot determine the actual date on which the conversation occurred, who started the exchange or what was said earlier in that exchange to provide context for what is now relied on as an admission in addition to purportedly disclosing a sexual interest in the complainant;

7. The police and the complainant provide conflicting information about how the Facebook Messenger application captures, stores or allows retrieval of messages based on whether or not someone was “blocked”;

8. This evidence cannot be tested by the defence, nor has the defence had the opportunity to consider engaging an expert witness to provide an opinion as to the true state of the operation of this messenger service;

9. The complainant does not have the Facebook application on his phone and there is no evidence as to whose Facebook account was logged into the Messenger application when the messages were viewed or photographed;

10. There is no evidence as to what photograph or personal information attaches to the profile “Mike Hansen” which the prosecution assert is unquestionably an account used by the accused;

11. There is also clear evidence from the complainant that he only communicated with a Facebook profile with the name “Michael Hansen” at any time after the alleged commission of the offences. There is no explanation as to how this name does not match the name of the contact under which the conversations sought to be relied on have occurred; and

12. There has been no explanation as to how, if the complainant had searched his phone, the messages could have been sporadically appearing and disappearing on his phone.

84. The defence asserts by reason of these matters, if the Crown was able to rely on the late disclosed evidence it would cause actual prejudice.

85. In his written submissions prior to the pre-trial hearing, Solicitor Advocate accepted that the evidence produced through the OIC to explain the failure to disclose the material and the delay in doing so was “sparse”. That is an understatement. The statements provided by the OIC contained little, if any, detail. The need to supplement that evidence by further oral evidence from the OIC (which had not been put in a statement and so was unknown to the defence until the hearing) was a significant reason that the hearing of the pre-trial application was extended and that the defence could not properly prepare for the pre-trial hearing.

84. When the OIC was examined in chief and then cross-examined, the reason for that lack of detail became very apparent. Apart from one case note (which was not in evidence), she took no notes, in her police notebook or elsewhere, of any of the conversations she had with the complainant or any other person or witness relevant to the investigation: see T 94.42-46 and T94.23. She accepted this was not in accordance with her training: T 94.48 – T 95.9. She described this significant failure on her part as an “oversight”: T 95.8. In my opinion, it was more than that. Coupled with her failure to seize and examine the complainant’s phone from when she first became aware of the text messages and the Facebook Messenger messages, including one which “had something to do with sex” (T 91.39-40) which she was aware of from 2019 or 2020, her failure to keep appropriate records of the investigation has contributed in a significant way to an abject failure of the prosecution to comply with its disclosure obligations and has led to the accused being prejudiced in the manner identified above by the defence.

85. Further, the defence submitted that it was not just the police who have failed to properly investigate and disclose in this case. It referred to the evidence of the requisitions made by the DPP. That evidence is that the DPP requisitioned the OIC in respect to the text messages referred to in [12] of the complainant’s statement of 2 October 2019. The requisition to the OIC was in an email dated 19 July 2021 and, relevantly, in the following terms (see T 23.30):

Dear Belinda, this matter has now been committed to the District Court. May I raise the following requisitions (some have been raised before):…6. Attempts to recover any text messages (we might be out of time to do this)… Please could you consider these ASAP and advise, regards

88. Later the same day, the OIC wrote back:

Text messages out of time, and the messages were through Messenger (Facebook) therefore they have blocked each other and can’t get them…..

89. Thus, it can be seen that at least from 19 July 2021 the DPP were aware of the Facebook Messenger messages said to have been sent between the complainant and the accused. Yet, despite this, it was not until 3 August 2022 that the DPP followed up on this matter. On that day, a further email was sent to the OIC as follows:

I understand the accused and complainant messaged one another via Facebook Messenger and we raised a requisition re same on 19 July 2021. You advised they had blocked one another and therefore the messages are not available as we understand. As we understand if you unblock someone on Facebook the messages should still be there (pending they haven’t been deleted).

Could you please make enquiries with the complainant to provide you with his phone/Facebook, unblock the accused and see if any relevant messages are there.

90. The email also mentioned the scheduling of the matter for trial in the Tamworth sittings commencing 22 August 2022.

91. There is no explanation in the evidence as to why there was over a year’s delay in the DPP following up on this information. By this time, as is set out above, the s 142 Notice from the Prosecution had been filed (on 27 June 2022). There was no mention in that Notice of any Facebook messages, or investigation into their existence or content, as outstanding items. There was no mention of this issue at the Readiness Hearing on 28 June 2022. The DPP have provided no explanation as to these omissions.

92. The OIC said that after this email, “at some point” she spoke to the complainant and “organised for him to come into the police station” (T 26.42). He came in for that purpose on 24 August (T 27.10). The three-week gap was due to the OIC’s workload and some personal issues she had which meant she had some time off (T 27.20).

93. The OIC said there had been quite a lot of communications between the DPP and her between 3 August and 24 August (T 27.44). The only additional detail of these subsequent communications is that on 17 August 2022 the DPP sent another email to the OIC which, in part, was:

Can I just clarify did [the complainant] come into the station recently and see if you could unblock the accused/retrieve the messages? Or did [the complainant] advise he had tried to do that? Our understanding is if you unblock someone the message may be there which is what we are after.

94. The OIC responded, in part, that “he told me he has tried. We did try one time when he came in and I think it may have been an old Facebook profile” (T 28.46). The OIC clarified that she did not recall whether he had come in and they had tried but thinks there was a discussion about the complainant having multiple Facebook profiles, but she could not recall when they had this discussion, and she did not look at his phone until 24 August 2022 (T 29.26-30.7).

95. There was a further requisition on 19 August 2022, again following up with the OIC as to trying to get the messages, to which she responded on 22 August 2022 saying:

I have on several occasions during the investigation attempted to get those messages, and previously spoken to techo [computer technician] about the retrieval of those messages and had no luck. Senior techo is back from leave tomorrow. I will contact [the complainant] and have him attend and again attempt this – and once this is completed we’ll have a statement completed outlining attempts and whether we have any luck…

96. In so far as it might be thought that by this message (and her previous messages) the OIC was telling the DPP that she had attempted to get the messages by doing something, for example inspect his phone, other than ask the complainant if he had tried to access the messages, she clarified that she had not (T 31.17-37).

97. The defence submitted, and it was accepted by the Crown, that no proper explanation for the delay in service has been given.

98. Each party were unable to point to any authority which set out in any definitive way the principles to apply when considering excluding evidence under s 146 of the CPA.

99. Many of the authorities that I was referred to considered the exclusion of the evidence under that section (because disclosure is late) and also under s 137 of the EA.

100. The Solicitor Advocate for the Crown referred to the decision of R v Al Batat & Ors (No 6) [2020] NSWSC 1079 as being an authority from which principles relevant to the exercise of the discretion under s 146 can be discerned. In that case, Hamill J was asked to exclude certain evidence which was not disclosed in accordance with the pre-trial disclosure requirements. Indeed, his Honour described the situation as a “blatant and contemptuous disregard of court orders on the part of the police and (by extension) the prosecuting authorities” (at [1]).

101. In that case, the application arose by reason of disclosure of material in the course of a pre-trial hearing, less than one week from trial when the Court was part-heard on a number of legal arguments. It emerged that, despite a number of Court orders regarding the disclosure of telephone records, further disclosure of additional records had been made by police.

102. His Honour recounted the case management of the proceedings. He referred to the various disclosures of telephone evidence and its importance. His Honour noted that during the pre-trial hearings and disclosure process, there was no mention of the belief or suspicion that the accused was using another telephone service or that there would be further analysis of the phone records before or during trial. In fact, evidence of a potentially significant phone was disclosed, as I have said, a week before the trial was to commence. Application was made to exclude that evidence.

103. His Honour:

1. analysed the evidence late disclosed, the manner in which it was to be used and its relevance;

2. considered the explanation for the late disclosure;

3. noted that Senior Counsel for the accused did not assert actual prejudice over and above the onerous task of considering the volume of the new material;

4. considered the appropriate remedies, including sending a message to the police and prosecution authorities;

5. considered whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.

104. Ultimately, his Honour concluded that the evidence should be admitted as it could be dealt with without prejudice to the accused and that the relevant and admissible evidence should be before the jury in the absence of particularly compelling reasons (see [55]) and that the jury may get a misleading picture and the case may be conducted on an artificial basis (see [56]).

105. Reference was also made to the decision of Bellew J in R vSharpe (No 2) [2021] NSWSC 22 at [34] and following, where his Honour excluded evidence due to failure to comply with case management orders and disclosure obligations and by reason of s 137 of the EA. The decision relevantly states:

[34] …I am compelled to observe that what has been allowed to occur in this case is deplorable. There is simply no other word to describe it. For my part at least, a situation of this kind is intolerable.

[35] One of the most fundamental principles of the system of criminal justice under which we operate in this country is that an accused person is entitled to know the case that he or she is required to meet. A necessary corollary of that principle is that an accused person is entitled to be appraised of that case in sufficient time prior to his or her trial to properly consider the evidence, to instruct lawyers, and to obtain any evidence which his or her lawyers consider necessary for the proper conduct of the defence case.

[36] Those principles were breached, and breached significantly, in the present case. It is a matter of considerable concern that, notwithstanding the fact that such principles are fundamental, their importance was obviously lost on a number of persons involved in the investigation and preparation of the case against this accused.

[37] Those who have the responsibility of preparing evidence for use in criminal proceedings, and those within the office of the DPP who have the carriage of such proceedings, should clearly understand that if obtaining and serving of important evidence, of whatever kind, is approached in the entirely unsatisfactory and lackadaisical way in which it was approached in the present case, the admission of such evidence will necessarily be put at significant risk.

106. Other authorities were referred to where there was an application to exclude evidence relying on s 146 CPA and/or s 137 EA. They included R v Rice (No 4) [2014] NSWSC 1525. Relevantly, in that case, Bellew J noted that unfair prejudice for the purposes of s 137 can be constituted by procedural unfairness of failing to make proper disclosure (at [31]-[32]). There were other authorities referred to by the Crown and summarised in the table that was marked MFI 9. It is not necessary to refer to them all.

107. Initially, the Crown submitted that the test under s 146 CPA was the same as the test under s 137 EA, at least to the extent that the Court is bound to take the probative value of the evidence sought to be excluded at its highest (T 160.44-48). Whilst that is clearly the case for the exercise required under s 137 EA, I do not accept it is necessarily the case under s 146 CPA. That section confers on the Court a discretion to exclude evidence when the mandatory pre-trial disclosure requirements have not been met. It must be considered in the context of the part of the CPA in which it appears, and its purpose gleaned from the plain wording of the statute and general principles of statutory construction.

108. These requirements in Division 3 of the CPA are to reduce delays in the trial process and to ensure the Court can undertake case management of the proceedings (see s 134, CPA). They are also to ensure fairness to each party such that by reason of the disclosure and the requirement for the pre-trial conferences and notices in ss 140-144 of the CPA, the issues in dispute and the evidence that will be deployed to prove those issues is fully exposed. In so far as this concerns disclosure by the prosecution, inherent in these provisions (and the general obligation of the prosecution to make, and continue to make, full disclosure to the defence in criminal proceedings) is the protection of the accused’s right to a fair trial.

109. There are no prescribed matters that the Court must, or may, take into account for the purposes of exercising the discretion available under s 146 to refuse to admit evidence if that evidence was not disclosed in accordance with the requirements for pre-trial disclosure under Division 3 of the CPA. In my opinion, the discretion must therefore be informed by the purpose of the provisions dealing with pre-trial disclosure.

110. Having regards to the apparent purpose of the provision and the abovementioned authorities, the discretion under s 146 should be exercised having regard to matters which include (and not in order of importance):

1. An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance;

2. The explanation for the late disclosure;

3. Any prejudice that would be caused if the new material was able to be relied upon;

4. Any appropriate remedies, including an adjournment of the trial; and

5. Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.

The Evidence, its Proposed Use and Relevance

111. The evidence of the Facebook messages is sought to be used, firstly, as an admission. The Crown says that taken at the highest and read as a whole, the messages are sexual. It says that read with the other parts of the messages, the message “remember anything to do with sex LOL” is “an implicit admission” by the accused of having had sexual contact with the complainant and gives “circumstantial corroboration to the complainant’s evidence” ([26] of the Crown written submissions).

112. For the purposes of the s 146 application, I have misgivings about this submission. That is because of the questions which remain about the timing of the message and whether other parts of the message thread not photographed by the OIC may put this message in a different context. I also consider that the time the messages were exchanged (assuming this to be in October 2012) does not mean that the only rational inference is that the reference to “remember anything to do with sex LOL” (assuming it refers to sexual contact between the accused and the complainant) is a reference to sexual contact at the time of the alleged offences, some three years before the messages were purportedly exchanged. However, taken at the highest in their present state, without consideration of these untested matters, I do accept that the messages are relevant and probative and could be taken, when considered with the whole of the other evidence, to constitute an admission of sexual contact between the accused and the complainant.

113. The Crown secondly seeks to use the evidence, together with other evidence, as tendency evidence. That is, on the basis that the messages are sexual in nature and they could refer to sexual contact between the complainant and the accused, they evidence a tendency of the accused to act on a sexual interest in the complainant. Whilst for the reasons I note below I am not ruling on the tendency notice in these reasons, I am prepared to assume for the purpose of the s 146 application that taken at the highest, the material relied on by the Crown, including the messages, may be evidence of the alleged tendency.

114. The third way the Crown seeks to use the messages is that, when read with certain parts of a recorded interview by the police with the accused, it is evidence of a lie by the accused impacting his credit. The part of the interview relied on (which is objected to by the defence and it will be seen has been rejected by me) is the following extract. “I said” is the OIC and “He said” is the accused (reproduced as it appears):

I said, “are you aware of his sexuality at all/”

He said, “ah no.”

I said, “no, can you remember, sorry.”

He said, “um I probably shouldn’t make assumptions about somebodies sexuality but”.

115. The Crown says that when this extract is read with additional parts of the interview and the Facebook messages, the evidence as a whole shows that the accused knew or assumed the complainant was homosexual and therefore made a sexual advance to him in the messages after previously having had sex with him (T 190.25). It says the accused’s denial of the complainant’s sexuality is a lie going to his credit. I had difficulty following this line of reasoning (see T 189.46-193.39) and I do not accept it. I do not think these questions and answers are relevant to the facts in issue in the case and I reject them.

116. The Crown next seeks to use the messages as relationship evidence and finally as “circumstantial corroboration of what the complainant says happened, namely, that there were various messages he was looking for…” (T 193.12-17).

117. Leaving aside the matters raised by the defence, but subject to the comments about the extracts of the interview I have rejected, I can accept for the purposes of this application that the evidence of the Facebook messages is relevant and probative.

Explanation for the Late Disclosure

118. As I have set out above, there is no proper explanation for the late disclosure. It has come about by reason of the failures of the OIC to properly undertake the investigation and examine or seize the complainant’s phone from when he first informed her of the SMS message supposedly sent immediately after the alleged offending conduct and the Facebook Messenger messages. She knew this information by late 2019 or mid-2020. As I have also set out above, the DPP failed to follow through on the requisitions with respect to the Facebook messages and there is no explanation as to why this is so.

Prejudice if the Late Disclosed Material is Relied Upon

119. I accept the matters raised by the defence in the paragraph [78] above. I accept that these matters cause the defence prejudice and cannot be tested by them. The Crown accepts the evidence it now seeks to rely on is not perfect (T 201.23). I infer from that that it accepts there are defects in some or all of which have been identified by the defence.

120. The Crown submitted that these were matters that the defence could cross-examine the complainant and/or the OIC on. I do not accept that this cures any prejudice. It would be a significant forensic risk for a cross-examiner to ask questions about those matters without having had the benefit of being able to investigate them prior to trial. For example, if the phone had been seized or properly examined by the OIC, it can be expected that the remainder of the message thread would be available to give context to the messages. To ask about this without being pre-armed with information would be a risk not many counsel would take. The same goes for asking whether it was the complainant’s Facebook Messenger account that was open on the phone when the OIC viewed the messages and photographed them.

121. The prejudice caused to the accused at this very late stage by the Crown seeking to rely on previously undisclosed evidence - which had been known about (in the sense of it being known that there were Facebook messages between the accused and the complainant) for a very long time, and now imperfectly produced with the resultant prejudice - weighs heavily against the admission of the late served evidence.

122. The Crown submitted that the interests of the complainant also had to be considered. It was submitted that he had always told the police that there were Facebook messages with the accused which had “something to do with sex”. It was part of his version of what happened to him. The Crown submitted that his interest in having this version put before the jury is relevant. It submitted that none of the other authorities it could find involved the complainant’s version not being disclosed and this took this case beyond those authorities.

119. I do not accept this submission. Whilst it is in the interests of justice for the complainant to have his full version of the alleged conduct put before the jury, that interest does not outweigh the right of an accused to a fair trial. Part of that right is the mandatory disclosure of material, including the full version of the complainant’s case, so the accused knows the case he has to meet and can properly prepare for trial in a timely manner. The fact that the failure of the police and prosecution to make full disclosure involved part of the complainant’s version of events does not persuade me that if the failure to disclose would otherwise jeopardise the accused’s right to a fair trial, the failure to disclose should be overlooked.

Remedies – including Adjournment

124. In terms of appropriate remedies, the relevant ones here are exclusion of the evidence or adjournment. I have dealt with exclusion of the evidence.

125. As to adjournment, the Crown contested the pre-trial hearing for over three days asserting that the evidence, despite its imperfections and faults, and the unacceptable and unexplained delay in disclosure and failure to comply with its disclosure obligations, should not be excluded. It sought a waiver of the disclosure requirements under s 148 of the CPA as it was in the interests of the administration of justice.

126. Then, on the fourth day of the pre-trial hearing, when for the reasons I have identified above with respect to the timing of the Tamworth sittings the trial was to be vacated in any event, the Crown applied for an adjournment of the pre-trial hearing (see T 203.21). That was so the Crown could requisition a Cellebrite examination of the complainant’s phone. This was in circumstances where nothing had been done to requisition the phone at any time since the messages were “discovered” on 24 August 2022. If that had been done, it is likely the results would have been known and possible the trial could still have gone ahead. The Solicitor Advocate could give no explanation as to why this was not done (T 203.29). I note that the Solicitor Advocate stated that he could not guarantee that any requisition by the DPP to seize the phone would be carried out, nor that any investigations of the phone such as a Cellebrite examination would succeed (T 197.10). In other words, the failure to already have seized the phone, at the very least, at the time the OIC examined it and her failure to capture all of the messages between the account holder and Mike Hansen, which creates the prejudice to the accused, may not be able to be cured. Additionally, the Solicitor Advocate did not concede that if the adjournment was granted and any further examination of the complainant’s phone did not cure the defects identified by the defence, that the evidence should be excluded. It would, he submitted, remain relevant and admissible in its current form (T 204.26).

127. Counsel for the defence submitted that this application flew in the face of case management. The only reasons the Court had spent over three days hearing argument about the admissibility of the material was because of the Crown’s failure to comply with its disclosure obligations. The defence submitted that it had shown its hand with respect to the defects it submitted (and which I accept) exist with the Facebook Messenger messages in their current form. The defence submitted that the Crown, realising those deficiencies, then sought to try to remedy them. This was, it was submitted, in circumstances where the Crown had not considered the deficiencies in the evidence when it first became aware of the evidence and was now reacting after having fought a voir dire for several days, creating a delay which meant the trial date would be vacated in any event. The defence submitted the application had the appearance of the Crown fearing that the Court would exclude the evidence, trying to circumvent the ruling it apprehended was coming. I ruled against the adjournment of the pre-trial hearing. In my opinion, there is considerable force in the defence submissions.

128. However, as I have said, the trial date had to be vacated such that there is an adjournment during which the Crown could take whatever steps it thinks fit with respect to further investigating the late disclosed evidence. At one stage, counsel for the defence sought orders preventing the Crown from relying on any further evidence obtained after such investigations. I refused to make such an order. It seems to me that the Crown is free to make whatever investigations it so chooses and can, if it thinks it necessary, after having made disclosure of the results, seek to rely on additional evidence. Whether the Court will allow that evidence will depend on the nature of the evidence and the reasons it had not been disclosed before and consider any prejudice to the accused.

129. On this application to exclude the late served evidence, I am ruling on that evidence in the form it was before me and taking into account the reasons for its non-disclosure and the prejudice to the accused. True it is that an adjournment of the trial has now occurred and the Crown may make the additional enquiries or investigations I have referred to. However, in my opinion, that does not cure the intolerable failure of the Crown to comply with its pre-trial disclosure obligations in the circumstances I have described above. It does not cure the fact that the Court had been told on several occasions that the trial was ready to proceed and was allocated a date in a busy regional circuit list in place of other matters. It may not cure the prejudice to the accused in the manner I have described above and his right to have the matter determined fairly and in a timely manner.

130. As was submitted by counsel for the defence, the case management provisions are designed to ensure that the Crown, who bears the onus to prove every element of the charges beyond reasonable doubt, discharges its duty to disclose to the accused person what its case is and the evidence to support that case. Those provisions also now require the defence to disclose to the Crown what it considers the issues are in the case and foreshadow objections to evidence in advance and not simply turn up at trial and take those objections. The defence in that sense is required to show its hand, and the Crown cannot be allowed to flagrantly breach those provisions and seek to introduce new imperfect evidence and get an adjournment to try to take steps to fix those imperfections.

131. I accept the defence submissions. I do not consider the remedy of an adjournment could, or does, alter the position that the Court’s discretion should, in the interests of the administration of justice, be exercised to exclude the evidence.

Whether Exclusion of the Evidence Would Result in a Misleading Picture

132. I also do not accept that if the evidence (in its current “imperfect” form) was excluded that the jury would be presented an artificial or misleading version of the facts. They would still have the evidence of the complainant with respect to his relationship with the accused, the events the subject of the charges and the evidence of the text message he says immediately followed those events. There would also be the evidence of any relevant events following the alleged conduct, including the complainant not wishing to get into the car again with the accused. The Crown submitted (T 174.41-47) that if the evidence were to be excluded, there would not be any evidence of any subsequent messages/communication between the complainant and the accused. In the context of the allegations and the complainant’s evidence that he wished to cease contact with the accused as a result of what he said happened to him, I do not see any artificiality about that.

133. In my opinion, for the above reasons, the late disclosure of this evidence and the defects in the evidence identified by the defence, which they are unable to test, cause manifest unfairness to the accused. The Crown should not be able to rely on this material.

134. I do not accept, for the same reasons, that it is in the interests of the administration of justice to waive the requirements pursuant to s 148 of the CPA.

Exclusion Pursuant to s 137 of the Evidence Act

135. Application was also made to exclude the evidence under s 137 of the EA.

136. As I have observed, that section provides that in the event that the Court is satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, the evidence must be excluded. Unlike s 146, there is no discretion for the Court to exercise.

137. Under that section, the Court must first determine the probative value of the evidence. It must next assess the danger of unfair prejudice to the accused. Then it must evaluate whether the probative value is outweighed by the danger (not the fact of) unfair prejudice to the accused.

138. I am prepared to accept that even with the defects the defence has identified which may cause a tribunal of fact to cast doubt upon the evidence, taken at its highest, the evidence of the Facebook messages is significantly probative. The messages clearly have some sexual overtone to them and do expressly refer to sex. It would be for the tribunal of fact to determine what those messages meant in the context of the whole of the evidence.

139. However, I have found that here there will be actual prejudice to the accused if the evidence is admitted by reason of the accused not being able to test the evidence in the manner I have described above. I note that it is accepted that unfairness of the type envisaged by s 137 can include procedural unfairness of the type that has occurred here: R v Rice (No 4) [2014] NSWSC 1525 at [32].

140. I have therefore concluded that the probative value of the late served evidence is outweighed by the danger of unfair prejudice to the accused and must be excluded.

Tendency Evidence

141. As I have set out above, the Crown served a new tendency notice on 24 August 2022 relying, in part, on the late served evidence together with some other evidence which had previously been disclosed (but not previously relied on as tendency evidence).

142. It was accepted by the Crown that if the late served evidence was excluded, the tendency notice would be withdrawn.

143. As I have ruled that the late served evidence should and must be excluded, and in light of that Crown concession, I do not intend to deal any further with the tendency notice.

Lookout & Taxi Events

144. There were two other items of evidence in the complainant’s statement of 2 October 2019 that the defence objected to. That evidence relates to two events which were referred to as the ‘lookout incident’ and the ‘taxi incident.’

145. The lookout incident is described in [10] of that statement where the complainant states:

I can recall an incident but I dint (sic) know if it was before or after rehearsal when Michael and I were in the car and we were at Tamworth Lookout. I was on the phone with my grandmother, [JC], I remember being scared, but I can’t recall why I was so scared, I was wishing that my grandmother would come get me, or I could have at least asked her to come get me. I remember thinking that if Michael knew that I was scared that he might ty and hurt me. I just had an uneasy feeling. It was dark, and I don’t think we were there that long, I think we would only have been there for about 10 minutes. I think that this may have been before rehearsal and I stayed on the phone with my grandmother the entire time.

146. The taxi incident is described in [14] of that statement as follows:

I can recall that after an after party for beauty and the beast that Michael, and another person were in a taxi and we got off near the park in East Tamworth. We got out of the taxi and we walked down the street and Michael invited me in and tried to entice me in by saying that he had the new Harry Potter movie. I told him no and walked home…

147. The lookout evidence is said to be relevant as relationship evidence and evidence with respect to how the complainant felt under the accused’s authority (his parents having asked the accused to take him to and from rehearsals).

148. I have doubts about the probative value of this event as nothing sexual was said to have happened or proposed. It did not relate to the accused taking the complainant back to his house, but happened most likely on the way to rehearsals. However, I accept that it may be relevant to the relationship between the accused and the complainant and how it is used will be a matter for the jury, subject to any appropriate directions as to relationship evidence once the whole of the evidence is known. For that reason, I ruled that I would not, at present, exclude this evidence.

149. The evidence of the taxi incident was said to be relevant as tendency evidence, and how the complainant changed his attitude and behaviour toward the accused (by not going into his house when invited) after the alleged sexual misconduct.

150. As the tendency notice will now fall away by reason of my rulings as to the exclusion of the late served evidence, I will not assess whether this evidence could be seen as tendency evidence. I will observe, however, that I had significant doubts about that.

151. I also note that the OIC, in an affidavit sworn 7 September 2020 in support of a surveillance device warrant against the accused deposed at [19] in respect to the taxi incident that:

[19] Beauty and the Beast was performed in May 2008 (sic), [the complainant] recalled catching a Taxi with HANSEN and another unknown male from the ‘after party’ for Beauty and the Beast. They all got dropped off near the park in East Tamworth. HANSEN invited [the complainant] and the other male back to his unit and then insisted they come back. HANSEN even tried telling [the complainant] he had the new Harry Potter film, in an attempt to get him to come back to his unit. [The complainant] declined the offer and walked home. (bold emphasis added)

152. The Solicitor Advocate for the Crown accepted that if the evidence fell from the complainant in chief (or in cross-examination) that the accused invited both the complainant and the other male into his house to watch the movie, then the evidence would not be admissible as tendency evidence, nor as I understood it, for any other purpose.

153. On the assumption that the evidence of the complainant will be as he recites in his statement, I propose to allow it. I accept it is relevant. The complainant can be cross-examined on this having regard to the OIC’s affidavit.

Sexual Activity and Experience

154. I have referred above to the evidence of the complainant that after the alleged sexual misconduct, the accused sent him a text message asking him if he had had sex before. He said he replied with a lie that he had.

155. This evidence clearly is evidence about the complainant’s sexual activity, experience, or lack of sexual experience. It is inadmissible by reason of s 294CB(3) of the CPA. The Crown seeks leave to rely on this evidence pursuant to s 294CB(4)(a), on the basis the evidence is of the complainant’s sexual experience or lack of experience or activity at the time of the alleged sexual misconduct and is of events that form part of a connected series of circumstances in which the prescribed sexual offence was committed, and the probative value of the evidence outweighs any distress, humiliation or embarrassment the complainant might suffer as a result of its admission.

156. I accept that the evidence falls within s 294CB(4) and that its probative value does outweigh any distress, humiliation or embarrassment the complainant might suffer. He has volunteered this matter to the police. If accepted by the jury, it may be highly probative of sexual activity, including the subject of the charges, having taken place with the accused. I allow that evidence.

Defence Application to Exclude Portion of Video Interview

157. I have dealt above with the exclusion of the part of the video interview with the accused (and the corresponding part of the transcript).

Good Character

158. The accused wishes to put before the jury evidence of good character in a particular respect and seeks a ruling under s 192A of the EA. The anticipated evidence will be that he has no arrests or prior convictions for any matters of a sexual nature, including sexual intercourse with a child. The accused wishes to have that evidence that he is a person of good character in those respects ruled as admissible.

159. There is evidence before me that the accused does have one mid-range PCA conviction.

160. However, it is accepted that this does not preclude the evidence that the accused is a person of good character in the respect mentioned. The evidence of the PCA offence is irrelevant to that matter: R v Steele [2021] NSWCCA 74. The evidence of his good character will be allowed.

Conclusion and Orders

161. For the above reasons, I order:

1. The following late served evidence is excluded pursuant to s 146 of the Criminal Procedure Act and/or s 137 of the Evidence Act:

1. The statement of the complainant dated 24 August 2022;

2. The photographs of the complainant’s mobile phone and video recording of the conversation between the complainant and DSC Vallette during which those photographs were taken; and

3. The statement of DSC Vallette dated 24 August 2022

2. The evidence of the lookout incident and the taxi incident is allowed;

3. The evidence of the complainant’s prior sexual experience in the text message described in paragraph [12] of his statement of 2 October 2019 is allowed;

4. That part of the evidence of the video interview between the police and the accused (and the corresponding part of the transcript) being:

I said, “are you aware of his sexuality at all/”

He said, “ah no.”

I said, “no, can you remember, sorry.”

He said, “um I probably shouldn’t make assumptions about somebodies sexuality but” is excluded; and

5. The evidence that the accused is a person of good character in the particular respect that he has no arrest or conviction for or in relation to any sexual offences, including sexual offences with children, is allowed.

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Decision last updated: 16 June 2023