R v Ludeke

[2016] NSWDC 57

District Court

New South Wales

Medium Neutral Citation:	R v Ludeke [2016] NSWDC 57
Hearing dates:	4 April 2016
Decision date:	05 April 2016
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Expert evidence from pharmacologist is not to be admitted into evidence in the Crown’s case
Catchwords:	Non-compliance by Crown with pre-trial disclosure requirements – sanctions
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 130, 141, 142, 146
Category:	Procedural and other rulings
Parties:	Office of the Director of Public Prosecutions (Crown) Adam Ludeke (Accused)
Representation:	Counsel: Ms Kemp (Trial advocate) Mr Edwards (Accused)
File Number(s):	2014/00085408
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Division 3 of Part 3 of the Criminal Procedure Act 1986 is concerned with case management and related other provisions.

2. The purpose of the Division is to reduce delays in proceedings on indictment.

3. In 2013 amendments were made to that Part of the Act to require both the prosecution and the defence to undertake mandatory pre-trial disclosure of specified matters in proceedings for indictable offences.

4. Sections 141 and 142 (which fall within Division 3) and District Court Practice Note 9, amongst other things, require the prosecution to give notice of the prosecution case, no later than three weeks before the date set for trial. One of things to be given is a copy of any report by an expert who is to be called in the prosecution case.

5. Of course, the requirement to give three weeks’ notice is to be understood in the context of ongoing investigations following the arrest of a person. The Crown material, indeed most Crown material, will have been served (possibly progressively) well before three weeks before the trial date.

6. Section 146 provides for sanctions for non-compliance with pre-trial disclosure requirements. Those sanctions apply to both the prosecution and the defence.

7. One of the sanctions specifically provided for is that the Court may refuse to admit evidence sought to be adduced by a party who failed to disclose that evidence to the other party in accordance with required pre-trial disclosure.

8. As an alternative to refusing to admit non-disclosed evidence, the Court may instead grant an adjournment if the failure to disclose causes prejudice to the party seeking the adjournment.

9. Applications for the exclusion of evidence, or the granting of an adjournment, do not need to be agitated before the ultimate trial Judge. They may be made before any Judge of the Court or, conveniently, before a list Judge or a Judge to whom the matter is referred by a list Judge (see s 130 of the Criminal Procedure Act).

10. On 21 May 2015 the trial of Adam Clayton Ludeke was fixed for hearing yesterday, 4 April 2016. On that later date, the accused was granted leave to file in Court a notice of motion seeking an order (relying on s 146) that the evidence of a pharmacologist (Mr John Farrar), which the Crown previously indicated it wished to adduce before the jury, be excluded. (The notice of motion actually used the expression that the evidence be “inadmissible”. The drafting error may be disregarded.)

11. The basis of the application is that the report of Mr Farrar was not served three weeks before the trial but on 29 March 2016.

12. The Crown accepts that there has been substantial non-compliance with the applicable statutory provision but says the appropriate remedy is to adjourn the hearing date. Given the state of the Court’s list, this necessarily means an adjournment into February or March 2017.

13. The evidence in support of the application was an affidavit of the accused’s solicitor made 30 April 2016. The Crown’s evidence was an affidavit, not by the officer-in-charge, but by the relevant solicitor within the DPP (the DPP solicitor) made 1 April 2016. In addition, the Crown tendered a bundle of documents which became exhibit 1.

14. The following undisputed facts emerged from the evidence.

15. As at November 2013, the Accused and the complainant lived in the same home unit complex in Castle Hill.

16. As well as residential units, the complex contained a gymnasium, spa, swimming pool and a sauna. Both the accused and the complainant made use of those recreational facilities.

17. In the evening of 19 November 2013 both the accused and the complainant were in the sauna. No one else was present. They were known to each other and on friendly terms.

18. The accused had brought a quantity of alcohol to the sauna, namely beer and some red wine. They both drank this alcohol. After a while, the accused left the sauna and returned with an opened bottle of white wine. Its contents were about one third full. The complainant drank some of the wine; and the accused drank more beer.

19. The Crown case is that thereafter the complainant became ill and disorientated; and that the accused took her back to his unit and had sexual intercourse with her, without her consent, knowing she was not consenting.

20. In circumstances not necessary to refer to in detail the complainant subsequently went to the police.

21. The accused was arrested. He was charged with one offence of cause to take intoxicating substance with intent to commit indictable offence and four charges of sexual intercourse without consent.

22. A brief of evidence was served on 1 June 2014. (This is an example of what I earlier referred to when I said that much material is invariably served well before the three weeks captured by s 146.) In that brief of evidence was a certificate from an analyst who had received samples of the complainant’s urine. The samples detected the presence of, relevantly, morphine. But significantly the brief did not contain a pharmacologist’s report to explain, in admissible form or at all, the significance, if any, of the presence of that drug in the sample.

23. On 16 September 2014 a telephone discussion took place between the accused’s solicitor and the DPP solicitor. The Crown (through the DPP solicitor) stated that it had considered obtaining a pharmacologist’s report and had decided not to. The date of the conversation and its contents should be noted.

24. A committal hearing was conducted in the Local Court in relation to the five charges on 28 April 2015. The Local Court committed the accused for trial in relation to the sexual assault counts but not the first charge – on the basis that there was no evidence that the accused administered morphine to the complainant.

25. Accordingly the accused was arraigned in this Court on 21 May 2015 on an indictment limited to the four sexual intercourse charges. The trial date of yesterday was appointed. (In presenting that indictment on that occasion, and necessarily excluding any reference to morphine, the Crown must have been satisfied that there was sufficient evidence to go to trial on the sexual assault charges otherwise the presentation of that indictment and the continuation of the trial would have been an abuse of process.)

26. On 16 February 2016 the DPP solicitor issued a number of requisitions to the officer-in-charge. In the application before me, the Crown chose not to put the exact terms of the requisitions in evidence. All that was revealed by paragraph 2 of the DPP solicitor’s affidavit was that they included “a request to obtain an expert report”. The area of expertise was not identified.

27. On 23 February 2016 the Crown served the required notice of prosecution case on the solicitors for the accused. That statement properly made no reference to the presence of morphine in the complainant’s urine.

28. On 22 March 2016 the officer-in-charge had a conference with the Crown – who specifically on behalf of the Crown is not revealed in the DPP solicitor’s affidavit. All the affidavit reveals (in paragraph 3) is that “the expert report requested on 16 February 2016 was being prepared”.

29. On the same day, and after the conference, the DPP solicitor wrote to the accused’s solicitors to advise that the officer-in-charge had attended the DPP and that, inter alia, “…an expert report has been requested to determine the approximate blood alcohol level of the complainant on the night of 19 April 2013 [sic]”. No mention was made of any report regarding the urine or morphine.

30. After that email was sent and received, the two relevant solicitors again spoke and the DPP solicitor confirmed that the presence of morphine would not be referred to by the Crown at the upcoming trial.

31. On 24 March 2016 at 10.11pm Mr Farrar sent an email to the DPP forwarding his report. A further copy was “received” by the DPP from the officer-in-charge the next day 25 March 2016 (otherwise known as Good Friday).

32. There is no evidence, or explanation, before the Court as to the circumstances in which Mr Farrar was retained by the officer-in-charge. I am certainly not prepared to find that when the DPP solicitor sent the email on 22 March, or had the subsequent telephone conference with the accused’s solicitor, she deliberately (or even inadvertently) mislead the solicitor for the accused. The only reasonable inference is that, as at 22 March 2016, the DPP did not know that the officer-in-charge had retained a pharmacology expert.

33. The report was served on the accused’s solicitors on 29 March 2016. It was adverse to the interests of the accused.

34. On 1 April 2016, and relying on that report, an ex officio indictment was prepared reinstating, as it were, the count in respect of which the Local Court declined to commit the accused for trial.

35. Given the long history of the matter in which, quite clearly, the significance of the presence of morphine in the complainant’s urine was specifically considered by the prosecution – and more than once – I am surprised (to say the least) that no explanation, let alone a satisfactory explanation, has been forthcoming as to when Mr Farrar was actually retained; and, even assuming it to have been about 22 March 2016 when he received email correspondence from the officer-in-charge (an assumption I am not prepared to make), why that retainer was so close to the trial date.

36. If there had been some form of explanation, I may well have acceded to the Crown’s submission as to the appropriate remedy, i.e. an adjournment, but it would have been on condition that the Crown pay not only the Accused’s indemnity costs thrown away by reason of the adjournment but also his indemnity costs of the committal hearing.

37. On the evidence (or lack thereof) before me, I therefore order that, pursuant to sections 130 and 146 subs(1) of the Criminal Procedure Act, the evidence of John Farrar be not admitted into evidence in these proceedings.

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Decision last updated: 27 April 2016