R v Ward
[2009] QSC 38
•5 March 2009
SUPREME COURT OF QUEENSLAND
CITATION:
R v Ward [2009] QSC 38
PARTIES:
R
v
BRUCE GORDON WARD
(Defendant)FILE NO/S:
Indictment No 955 of 2008
DIVISION:
Trial
PROCEEDING:
Criminal review
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
5 March 2009
DELIVERED AT:
Brisbane
HEARING DATE:
27 February 2009
JUDGE:
Fryberg J
ORDER:
The court directs that:
1) save to the extent that it has already substantially done so the Crown –
forthwith give the solicitors for the accused written notice of the names of all experts who may be called by the Crown as witnesses at the trial and of all relevant findings made by those experts; (a)
obtain reports or statements of evidence of any expert who may be called as a witness at the trial on or before 17 March;(b)
give copies of all reports, summaries or statements of evidence of experts relating to the case which are or shall come into its possession to the solicitors for the accused on or before 19 March;(c)
2) the accused give the Director of Public Prosecutions written notice of the names of all experts who may be called by the accused as witnesses at the trial and of all relevant findings made by those experts on or before 3 April;
3) the accused give copies of all reports, summaries or statements of evidence of experts relating to the case and which may be used by the defence at the trial, which have or shall come into his possession (or that of his lawyers or agents) on or before 14 April to the Director of Public Prosecutions;
4) the accused give copies of all reports, summaries or statements of evidence of experts relating to the case and which may be used by the defence at the trial, which shall come into his possession (or that of his lawyers or agents) after 14 April to the Director of Public Prosecutions within two days of its receipt;
5) the trial be listed to commence on Tuesday 7 July 2009.
CATCHWORDS:
Criminal law – Jurisdiction, practice and procedure – Other matters – Disclosure of expert evidence material
Criminal Code 1899 (Qld) s 590AA, 590B
COUNSEL:
Prosecution: D Meredith
Defendant: K Mellifont
SOLICITORS:
Prosecution: Director of Public Prosecutions
Defendant: Harry McCay
FRYBERG J: Dr Ward has been charged with one count of negligent manslaughter. At the last review the presiding judge was informed that in the estimation of defence counsel, the trial would take 10 to 12 weeks. The judge indicated that she would try to have the trial listed to commence in the first full week of July, after the midyear vacation. It was not possible to allocate a definite date until the court calendar for the second half year is prepared.
In the course of preparing the calendar, difficulties arose relating to the availability of judges for the period of the defence estimate. As a result I reviewed the matter last Friday. I discussed at length with counsel the possibility of advancing the trial date and sitting during the vacation. That course was vehemently opposed by the defence. In particular I was told that senior counsel for the accused, who had already held a number of conferences with the accused, was not available during the vacation. I was told that senior counsel considered the matter would finish within 12 weeks. It being late on Friday afternoon, I reserved my decision.
After considering the exigencies of the calendar and the foregoing matters, I concluded that the commencement date of the trial could remain unchanged without ill effect provided the trial took no longer than 12 weeks. However I considered that as much as possible should be done at an early stage to minimise the risk of the trial taking longer than this estimate. In particular, since it is in my judgment likely that expert evidence will be called by both sides, I considered it desirable that steps be taken to ensure the early exchange of expert reports.
Rather than increase costs by holding a further review hearing, I had my associate
e-mail the parties with draft directions relating to the exchange of expert evidence as follows:
“The Court directs that:
1.Save to the extent that it has already substantially done so the Crown –
(a) Forthwith give the solicitors for the accused written notice of the names of all experts who may be called by the Crown as witnesses at the trial and of all relevant findings made by those experts;
(b) Obtain reports or statements of evidence of any expert who may be called as a witness at the trial on or before 17 March;
(c) Give copies of all reports, summaries or statements of evidence of experts relating to the case which are or shall come into its possession to the solicitors for the accused on or before 19 March.
2. The accused give the Director of Public Prosecutions written notice of the names of all experts who may be called by the accused as witnesses at the trial and of all relevant findings made by those experts on or before 3 April.
3. The accused give copies of all reports, summaries or statements of evidence of experts relating to the case and which may be used by the defence at the trial, which have or shall come into his possession (or that of his lawyers or agents) on or before 10 April to the Director of Public Prosecutions.
4. The accused give copies of all reports, summaries or statements of evidence of experts relating to the case and which may be used by the defence at the trial, which shall come into his possession (or that of his lawyers or agents) after 10 April to the Director of Public Prosecutions within two days of its receipt.
5. The trial be listed to commence on Monday 6 July 2009.”
The e-mail invited submissions in writing about the directions, such submissions to be received by 4.00 pm on 5 March. Submissions in relation to paras 3 and 4 of the proposal have been received from counsel for Dr Ward. None has been received from the Crown.
The defence submitted that in lieu of those paragraphs the following should be substituted:
“If the accused intends to adduce expert evidence from an expert (apart from Professor Ian Hammond, notice of whom has already been provided to the Director of Public Prosecutions), the accused give to the Director of Public Prosecutions the name of the expert, and any finding or opinion he or she proposes to adduce, or, if a report on which the finding or opinion is based is available, a copy of that report, within two days of that intention having been formed.
Further, if it is intended for Professor Ian Hammond to give evidence on issues beyond those already apparent in the inquest material, a further report will be obtained from Professor Hammond and provided to the Director of Public Prosecutions within two days of receiving that report.”[1]
[1]Outline of submissions on behalf of accused dated 5 March 2009.
It was submitted that this wording reflected the intention and terminology of s 590B of the Criminal Code. The submission accepted “the need for expert evidence to be provided to the prosecution in a timely manner such as to seek to ensure that the trial process is not delayed or held up in any way through late obtaining, or disclosure, of” that evidence.
Section 590AA of the Criminal Code provides:
“590AA Pre-trial directions and rulings
(1) If the Crown has presented an indictment before a court against a person, … a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.
(2) Without limiting subsection (1) a direction or ruling may be given in relation to —
…
(h)the exchange of … expert reports; or
…
(m)encouraging the parties to narrow the issues and any other administrative arrangement to assist the speedy disposition of the trial.”
It was not suggested that the proposed directions fell outside the power conferred by that section.
In my judgment both para (h) and para (m) are engaged in the present case. From what I was told of the allegations, Dr Ward is being prosecuted for negligence in performing an operation on and in post-operative care of his patient. He was committed for trial at the end of an inquest at which considerable expert evidence was given. I think it is highly desirable that each side be aware of the available expert evidence at an early date, to ensure that there are no surprises in relation to it and to maximise the opportunities for narrowing the issues arising on that evidence.
I do not think that the directions proposed by the defence are apt to achieve these objectives. With one exception they limit the defence disclosure obligation to the situation where the defence has formed the intention to adduce expert evidence from a particular expert. Such directions would not add to the obligation already imposed on the defence by s 590B of the Criminal Code. In particular, the expert evidence would not have to be disclosed until the defence formed of the intention of adducing the evidence at the trial. In a case such as the present that is simply not good enough. If the Crown needs to call evidence to contradict an expert who might be called by the defence, it needs to know of that need in sufficient time to engage an appropriate expert and allow him or her time to consider the evidence, carry out any necessary research and form an opinion. It is not sufficient to wait until the defence decides whether it intends to call a witness whose report it has obtained.
It was not suggested that the proposed orders would infringe any privilege against self-incrimination or that they should be varied to take this possibility into account. One would think it highly unlikely that the defence would call any expert whose evidence would tend to incriminate the accused. It is most improbable that any incriminatory expert evidence in the possession of the defence would fall within the terms of the order proposed.
There is another consideration. The court has a duty to ensure that all accused receive as speedy a trial as possible. It behoves a directions judge to ensure that estimates of time by counsel are as realistic as possible. The inquest which led to Dr Ward's committal lasted for three weeks and, I was told, a number of parties appeared at it. The principal Crown expert was not called at the inquest and he is to be the subject of a Basha[2] hearing for four days in April. The experienced Crown prosecutor estimated that the trial would take six weeks plus the time for any defence evidence. That seems to me a reasonable estimate. I have great difficulty in seeing how evidence for the defence, plus (if you like) cross-examination prolonged beyond what is presently expected by the prosecutor, would occupy a further six weeks. If the trial takes substantially less than 12 weeks, and this becomes apparent only when the trial is well advanced, it is likely that other cases will not be able to be listed in the unused period. Such a result would pay insufficient regard to the interests of the community and of other defendants.
[2]R v Basha (1989) 39 A Crim R 337.
For these reasons I shall give directions substantially in accordance with the proposal. No particular objection was raised to the dates therein specified. However 6 July is the date of the annual law church service and practitioners involved may wish to attend. 10 April is Good Friday. Those dates will be adjusted to 7 July and 14 April.
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