R v Warwick (No.30)

[2018] NSWSC 1051

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.30) [2018] NSWSC 1051
Hearing dates:	3 July 2018, 4 July 2018, 5 July 2018, 6 July 2018
Date of orders:	06 July 2018
Decision date:	12 July 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1) The Amended Notice of Motion filed in Court on 3 July 2018 by the Accused, which has been referred to as the ‘June Adjournment Application’, is dismissed. (2) In light of the time occupied this week for the hearing of the unsuccessful June Adjournment motion, I direct that the hearing of evidence in the trial is to commence at 10am on Monday 16 July 2018.
Catchwords:	CRIMINAL PROCEDURE – third application by accused for further adjournment of criminal trial – accused charged with a number of serious historical offences – allegations of inadequate disclosure by the Crown and police – where voluminous material had been produced by parties subpoenaed by the accused – delay in defence obtaining expert witnesses – where order of Crown witnesses had been amended after discussions with lawyers for the accused – not satisfied that an adjournment would be in the interests of justice to adjourn application – application dismissed
Legislation Cited:	Bail Act 2013 Criminal Procedure Act 1986 Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 Director of Public Prosecutions Act 1986
Cases Cited:	Cornwell v The Queen [2010] NSWCCA 59 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478 R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123 R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Warwick (No.2) [2017] NSWSC 1225 R v Warwick (No.3) [2017] NSWSC 1836 R v Warwick (No.5) [2018] NSWSC 70 R v Warwick (No.8) [2018] NSWSC 354 R v Warwick (No.16) [2018] NSWSC 733 R v Warwick (No.20) [2018] NSWSC 656 R v Warwick (No.21) [2018] NSWSC 654 R v Warwick (No.24) [2018] NSWSC 691 R v Warwick (No.28) [2018] NSWSC 812 R v Warwick (No.29) [2018] NSWSC 901 The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Texts Cited:	Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 December 2000
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.

Judgment

1. This judgment addresses orders sought by the Accused in an Amended Notice of Motion filed in Court on 3 July 2018 (“the June Adjournment Application”), which were as follows:

“1.   That the hearing listed to commence on Monday 9 July 2018 be adjourned.

2.   That the matter not be further listed for hearing before 18 September 2018.”

2. The Notice of Motion in its original form had sought an adjournment until February 2019.

3. The hearing of the current application commenced on Tuesday 3 July 2018. Argument and submissions concluded on Friday 6 July 2018, which was the last working day before the taking of oral evidence was due to commence.

4. On that day, I made the following orders:

“1.   For reasons which will be delivered in due course, the Amended Notice of Motion filed in Court on 3 July 2018 by the Accused, which has been referred to as the ‘June Adjournment Application’, is dismissed.

2.   In light of the time occupied this week for the hearing of the unsuccessful June Adjournment Application, I direct that the hearing of evidence in the trial is to commence at 10am on Monday 16 July 2018.”

5. These are the reasons for the orders which were made on Friday 6 July 2018. Due to the shortage of time available to the Court, these reasons are less felicitously expressed than would otherwise be desirable.

Previous Adjournment Applications

6. There have been two previous applications for adjournment. The first, heard in February 2018, was an application by the Accused to adjourn the trial which was then fixed to commence on 19 February 2018, for 12 months (“the February Adjournment Application”). On 9 February 2018, the application was rejected, but the trial was adjourned to commence on 14 May 2018: R v Warwick (No.5) [2018] NSWSC 70.

7. On 11 May 2018, being the last working day before the trial was due to commence, the Accused again applied for an adjournment of the trial so that it would not commence before February 2019 (“the May Adjournment Application”). That application was unsuccessful. The Court decided that it would embark upon on an opening of the trial on 15 May 2018, and that the taking of oral evidence in the trial would be adjourned to resume on Monday 9 July 2018: R v Warwick (No.20) [2018] NSWSC 656.

The Events and the Offences

8. This is the thirtieth judgment delivered by the Court in these proceedings. The general background including the nature of the charges, the Crown case, rulings on the admissibility of evidence, and other issues raised by the Accused have been dealt with in each of those judgments.

9. Whilst it is inappropriate to repeat all that is there written, a summary of the general background may assist in demonstrating the context of the present application. This summary necessarily adopts some of what was written previously, and omits some of what was written previously. All that has previously been written has been considered.

10. The Accused was arrested on 29 July 2015, and charged with a series of offences. He has been in custody ever since.

11. The Accused is charged with 24 offences. Twenty-one of those offences are principal offences, and three are charged in the alternative.

12. The Accused is charged with the following principal offences:

1. four counts of murder, contrary to s 18(1)(a) of the Crimes Act 1900;

2. two counts of exploding an explosive device which destroys or damages a building with intent to murder a named individual contrary to s 28 of the Crimes Act;

3. one count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act;

4. one count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the Crimes Act; and

5. thirteen counts of maliciously, by an explosion, causing grievous bodily harm to named individuals contrary to s 46 of the Crimes Act.

13. In addition to these 21 counts, there are three further counts charged in the alternative which do not need description for the present.

14. These offences for which the Crown alleges that the Accused was responsible, arise from the happening of seven Events which can be described in the following way:

Event No.	Description	Count on the Indictment
1.	The murder of Stephen Blanchard at Revesby on or about 22 February 1980 (‘the Stephen Blanchard murder’)	Count 1
2.	The murder of Justice David Opas at Woollahra on 23 June 1980 (‘the Opas murder’)	Count 2
3.	The bombing of Justice Richard Gee’s home in Belrose on 6 March 1984 (‘the Gee bombing’)	Counts 3-4
4.	The bombing of the Family Law Court building at Parramatta on 15 April 1984 (‘the Family Court bombing’)	Count 5
5.	The bombing of Justice Raymond Watson’s home at Greenwich on 4 July 1984 (‘the Watson bombing’)	Counts 6-8
6.	The bomb found in a vehicle at the former home of Garry Watts on 10 February 1985 (‘the Watts bombing’)	Counts 9-10
7.	The bombing of the Kingdom Hall of the Jehovah’s Witness church at Casula on 21 July 1985 (‘the Kingdom Hall bombing’).	Counts 11-24

15. When the Crown delivered his opening on 15 May 2018, he outlined his case with respect to each of these Events. For the purposes of this judgment, that opening statement was substantially to the same effect as the Crown Case Statements which were summarised in R v Warwick (No.2) [2017] NSWSC 1225.

16. There is no need to repeat the Statements here. But I will have regard to those Statements as sufficiently describing the Crown case.

17. The Events (and offences) happened between 33 and 38 years ago, which, in terms of the administration of justice, poses obvious problems. From the perspective of the Accused, he is confronted with a trial in which the evidence of witnesses and their recollection may well be diminished by the passage of time. As well, documents or exhibits which previously existed may no longer exist, or be able to be found. But, this does not mean that a trial is necessarily unfair. As the High Court of Australia said in The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31]:

“31   … Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”

18. From the perspective of the Crown, the time elapsed also makes more complicated the proof of the case advanced, in light of the availability of evidence to be called. The difficulties confronting both the Accused and the Crown however point strongly towards ensuring that the trial is heard without any further or undue delay.

Chronology of Proceedings

19. In the course of the committal process in the Local Court, on 23 August 2016, then counsel for the Accused filed lengthy written submissions in support of an application under s 91 of the Criminal Procedure Act 1986 to cross‑examine two identified witnesses, being two retired detectives, Mr King and Mr Woods. At that time, counsel was in possession of, and had referred in his submissions to, the Police Brief. As it then existed, the Police Brief included an expert report of Dr Bruce from the Forensic & Analytical Science Service section of the Department of Health (“FASS”), relating to DNA testing carried out a short time before and shortly after the arrest of the Accused. DNA testing was not available to the authorities in the 1980s.

20. At an early stage of the committal, the then lawyers for the Accused, Eidan Havas & Associates, issued a subpoena addressed to FASS from the Local Court requiring the production of documents. That subpoena called for the production of the whole of the laboratory file with respect to the Accused. It is apparent that some documents were produced by FASS on 2 November 2015. It is not clear from the material before this Court on this Motion precisely what was produced. In light of the fact that no application with respect to this subpoena or any production under it was made to the Local Court, it is reasonable to conclude that the production by FASS was adequate for the purposes of the Accused’s lawyers.

21. Although the Accused’s lawyers had access to the contents of Dr Bruce’s report, and the documents which were produced in the Local Court, no application was made by the Accused to cross-examine Dr Bruce at the committal hearing.

22. On 5 December 2016, the two identified witnesses attended and were cross‑examined in the presence of the Accused, by his counsel. The subject matter of the cross-examination was the elimination exercise of Family Court litigants who might be regarded as suspects for the Events upon which the investigating Police had embarked, and the detail of the process by which that exercise was undertaken.

23. At the conclusion of the examination of the witnesses on 5 December 2016, the Crown was ordered to file written submissions with respect to the issue of whether the evidence upon which it relied was sufficient to warrant the committal of the Accused to stand trial by the following Wednesday, 7 December 2016. The matter was listed for determination on 14 December 2016.

24. On 9 December 2016, submissions prepared by Mr Thomas, counsel for the Accused, were provided to the Local Court. These submissions replied to the Crown submissions and dealt with the question posed for the Magistrate as to whether the Accused ought be committed for trial. Annexed to the submissions was a detailed chronology referring to various parts of the Police Brief by page number and reference, including the noting of inadequacies in the evidence. In particular, the submissions emphasised the lack of physical evidence from the crime scenes linked with the Accused, and the circumstantial nature of the proceedings.

25. On 14 December 2016, for the reasons which were delivered on that day, the presiding Magistrate committed the Accused to stand trial in the Supreme Court.

26. The matter was first mentioned in this Court before Johnson J on 10 February 2017. No Indictment was presented. Johnson J, who was responsible for the conduct of the Criminal List, indicated that it would be necessary for the matter to be efficiently progressed.

27. On 3 March 2017, the Accused was arraigned before me upon on an Indictment presented that day. When arraigned, he pleaded not guilty to each count. On that day, the Accused was represented by counsel, Mr R Thomas, who was instructed by Eidan Havas & Associates. This was the same legal team that had appeared for the Accused in the course of the committal.

28. On 3 March 2017, discussion occurred and submissions were made about the appropriate and necessary pre-trial steps, and as well, a suitable date for the commencement of the trial. After further discussion, a six month estimate was agreed as the likely length of the trial. On that day, the Court fixed the trial to commence on 19 February 2018.

29. Other orders were made for the undertaking of interlocutory steps in accordance with the Criminal Procedure Act, including that the Crown serve its s 142 Notice on or before 22 June 2017. The Crown’s Notice was filed and served at that time.

30. On 21 August 2017, the matter was listed for pre-trial argument addressing Notices served by the Crown with respect to coincidence and tendency evidence. The Accused also made an oral application for the separation of the counts on the Indictment so that separate trials would be held for each Event. Judgment was reserved at the conclusion of the submissions.

31. On 23 August 2017, further argument was taken and rulings given on admissibility of evidence: R v Warwick (No.3) [2017] NSWSC 1836.

32. On 6 October 2017, judgment was delivered in R v Warwick (No.2) [2017] NSWSC 1225, with respect to the coincidence and tendency evidence. In the same judgment, the Accused’s oral application for a separate trial with respect to each of the seven Events was rejected.

33. On 24 November 2017, on the application of Mr E Havas, the Court granted leave for Mr Havas to withdraw as the solicitor for the Accused. Counsel then appearing, Mr R Thomas, indicated to the Court that he continued to be briefed to appear and that he did not anticipate any difficulty in the commencement of the proceedings on the date fixed for trial, in February 2018.

34. On 2 February 2018, at a directions hearing, Mr A Bellanto QC, who appeared with Mr R Thomas, informed the Court that a new solicitor had recently been instructed, namely, Mr A Conolly of A R Conolly & Co, and that there were a number of interlocutory matters that needed to be promptly addressed, including an application by the Accused for an adjournment of the trial.

35. As earlier indicated, the February Adjournment Application, whilst unsuccessful in its terms, did result in the date for the start of the trial being adjourned for three months.

36. It is unnecessary to recount all of the interlocutory applications here dealt with by the Court since February 2018. Only some will be referred to.

37. On 7, 16 and 20 March 2018, the Court heard a release application pursuant to the Bail Act 2013, made by the Accused. On 23 March 2018, for the reasons which were then delivered, the application was refused: R v Warwick (No.8) [2018] NSWSC 354.

38. On 11 May 2018, I made an order pursuant to s 132(1) of the Criminal Procedure Act that the Accused be tried by a judge alone. The background to that order is described in R v Warwick (No.21) [2018] NSWSC 654. It was made on the application of the Accused, with the consent of the Crown.

39. On the same day, I refused the May Adjournment Application, but, with the flexibility of a judge alone trial, I made directions with respect to the start of the trial, including a delay to the commencement of the oral evidence, until 9 July 2018: R v Warwick (No.20) [2018] NSWSC 656.

40. On 15 May 2018, the trial commenced with the Crown prosecutor delivering an opening. He also tendered the file of the proceedings in the Family Court of Australia between the Accused and his former wife, Ms Blanchard. That file was admitted provisionally as Exh 1 in the proceedings: R v Warwick (No.24) [2018] NSWSC 691.

41. In the course of these interlocutory matters, the Court also dealt, amongst other things, with the return of documents in response to subpoenas issued by the Accused, and the Crown.

Subpoenas of the Accused

42. From court records, it is apparent that in the period since February 2018, at least 20 separate subpoenas have been issued by the Accused, addressed to various organisations and individuals, requiring the production of documents. Of particular significance in this application, were three subpoenas addressed to the Commissioner of the NSW Police (“the Commissioner”).

43. The first of those subpoenas was issued on 17 April 2018. That is to say, about two and a half months after A R Conollly & Co were instructed to act for the Accused, and about one month before the trial was due to commence. It became Exh PTN. The subpoena was first returnable on 23 April 2018, together with a significant number of other subpoenas. At the request of the parties, the subpoena was stood over to the following day, at which time the Commissioner by his counsel indicated that a Notice of Motion to set aside the subpoena would be filed and served by 26 April 2018. On 1 May 2018, the Motion was heard and orders made. Reasons were subsequently delivered: R v Warwick (No.16) [2018] NSWSC 733.

44. Following upon the Court’s orders, a second subpoena was issued on behalf of the Accused to the Commissioner on 4 May 2018. It became Exh PTV. On 21 May 2018, the Commissioner filed a Notice of Motion which sought to set aside a part of that subpoena. The Notice of Motion was heard on 30 May 2018, when the Court delivered an ex tempore judgment and made orders: R v Warwick (No.28) [2018] NSWSC 812.

45. Again following the Court’s judgment and orders, on 1 June 2018, the Accused issued a third subpoena to the Commissioner which was returnable before the Court on 12 June 2018. It became Exh TA. On 18 June 2018, the Court made orders consequent upon a Motion filed by the Commissioner on 12 June 2018 with respect to that subpoena. The orders had the effect of setting aside significant parts of the subpoena: see R v Warwick (No.29) [2018] NSWSC 901.

46. With respect to each of these three subpoenas, the Motions filed by the Commissioner sought to challenge only particular parts of the subpoenas, and then, in some cases after discussions between the parties and an agreement to limit the reach of some of the challenged paragraphs, no further objection was taken.

47. The Commissioner, by his officers, searched for and produced documents responding to each of these subpoenas over time. On Friday 29 June 2018 and Tuesday 3 July 2018, counsel appearing for the Commissioner informed the Court that the Commissioner had complied with each of the subpoenas and that such documents as the Commissioner had, which fell within the subpoenas to the extent that the schedule was either agreed or allowed, had been produced.

42. The Court was informed by the lawyer for the Accused during the hearing of the June Adjournment Application that the production on these two days totalled about 10,000 pages.

June Adjournment Application

49. In support of the June Adjournment Application, the Accused relied upon two lengthy affidavits of Ms Ramsay of 28 June 2018 and 3 July 2018, together with two volumes of exhibits to the first of those affidavits. Oral and written submissions were made by the Accused. The basis for the adjournment seemed to rely upon the following matters principally, but not exclusively:

1. a failure by the Director of Public Prosecutions (“the DPP”) and the NSW Police to comply in a timely way, or at all, with their respective obligations of disclosure including, in particular, the disclosure to the Accused of all notebooks or duty books containing original notes and information created during the course of the investigation into each of the seven Events, both during the 1980s and again during the more recent investigation commencing in 2013 up to the present time, and also all documents concerning enquiries made in relation to missing notebooks and duty books and documents recording any attempt to locate these notebooks and duty books (“the Disclosure Issue”);

2. a failure by the DPP to make available to the Accused all of the underlying worksheets, notes and correspondence with, or from, experts retained either by the NSW Police or by the DPP during the investigations, and as well, for the purpose of giving evidence at the trial with the result that the Accused had been delayed in instructing experts and, as a consequence, obtaining any expert reports (“the Expert’s Issue”);

3. the absence of any disclosure, or inadequate disclosure, of all documents in any form relating to the continuity of exhibits, including original documents recording where exhibits were located at the various crime scenes, and how those exhibits were dealt with both initially and during extended periods of storage (“the Continuity Issue”);

4. a failure by the DPP to fully comply with the provisions of s 142 of the Criminal Procedure Act, in particular s 142(1)(m) of that Act (“the CP Notice Issue”); and

5. late notification of the change of order of witnesses which prejudiced the Accused’s preparation for trial (“the Witness Issue”).

50. In combination, each and all of these matters were said by the Accused to have delayed preparation by his lawyers and to have put them in the position of being unable to open his case in response to the Crown Opening, and to be in a position to cross-examine Crown witnesses.

51. In the course of oral submissions on Thursday 5 July 2018, in an exchange between the Court and Ms Ramsay for the Accused, it became apparent that at the heart of all of the submissions being made on behalf of the Accused was the contention that in criminal proceedings involving serious offences, such as the present proceedings, the obligation of disclosure falling upon the DPP and/or the NSW Police required disclosure to the Accused without a request, or the issue of a subpoena, of at least the following documents:

1. all statements prepared and signed by any person interviewed in the course of the Police investigation into the Events;

2. all notebooks and duty books of all Police officers involved in that investigation, and as well, all running sheets prepared in the course of the investigation (conveniently called “primary documents”);

3. all correspondence between the Police and witnesses (whether lay or expert) with respect to the obtaining of statements or expert reports, including the provision of documents or items to those witnesses for the purpose of the writing of their expert reports, or the making of their statements; and

4. all documents, including criminal history records, which affect the credit of Crown witnesses, or other documents which may reflect adversely on the credibility of any Crown witness, or the evidence which they give.

52. As well, it was apparent from other submissions that two other categories of documents would also be similarly regarded, namely:

1. primary documents relating to the collection of exhibits and the continuity of the possession of those exhibits; and

2. documents which related to, or any investigation into, any missing or unavailable primary documents, and what has become of them.

Duty of Disclosure

53. In light of the submissions on behalf of the Accused, it is convenient to here consider what the obligation of disclosure is in criminal proceedings, on indictment in this Court.

54. The Court has not had the benefit of detailed submissions addressed to how the duty of disclosure might be described. Rather, what was dealt with here was the submission of the Accused that an obligation of disclosure resting on both the DPP and the Police existed and that certain documents that needed to be disclosed had not been.

55. Some general propositions of relevance to the general obligation of disclosure which rests on a prosecution may be of assistance in understanding the extent of the obligation of disclosure.

56. First, the Crown Prosecutor is bound to act fairly in the discharge of the function which he or she performs in a criminal trial, which is ultimately to assist in the attainment of justice between the Crown and the Accused: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674, 675 per Dawson J.

57. Secondly, the prosecution case is presented in the context of an adversarial process in which each side decides which issue is (or which issues are) to be contested and the ground upon which the issue is to be dealt with, the evidence which it or he will call, and what questions are to be asked of witnesses: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [72].

58. In 2004, in a decision which did not directly relate to the statutes to which reference will be made below, the Court of Criminal Appeal in R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454 (Hodgson JA, Simpson and Barr JJ agreeing) adopted as a correct encapsulation of the prosecution’s duty of disclosure, the following description set out in R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478, namely:

“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1)   to be relevant or possibly relevant to an issue in the case;

(2)   to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;

(3)   to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”

59. In Cornwell v The Queen [2010] NSWCCA 59, that statement of principle seemingly was approved by McClellan CJ at CL with whom Johnson J agreed at [210]. At [298] in Cornwell, Simpson J said:

“A prosecuting authority will be expected voluntarily to disclose material in its possession that, ‘on a sensible appraisal’, can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused or subpoena issued by the court, such material, if a ‘legitimate forensic purpose’ for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14.”

60. There are two legislative provisions to which the Accused drew attention with respect to the duty of disclosure. The first is s 15A of the Director of Public Prosecutions Act 1986 (“the DPP Act”), which is in the following form:

“15A DISCLOSURES BY LAW ENFORCEMENT OFFICERS

(1)    Law enforcement officers investigating alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).

(2)    The duty of disclosure continues until one of the following happens:

(a) the Director decides that the accused person will not be prosecuted for the alleged offence,

(b) the prosecution is terminated,

(c) the accused person is convicted or acquitted.

(3)    Law enforcement officers investigating alleged offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.

(4)    The regulations may make provision for or with respect to the duties of law enforcement officers under this section, including for or with respect to:

(a) the recording of any such information, documents or other things, and

(b) verification of compliance with any such duty.

(5)    The duty imposed by this section is in addition to any other duties of law enforcement officers in connection with the investigation and prosecution of offences.

(6)    The duty imposed by this section does not require law enforcement officers to provide to the Director any information, documents or other things:

(a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or

(b) that would contravene a statutory publication restriction if so provided.

(7)    The duty of a law enforcement officer in such a case is to inform the Director of:

(a) the existence of any information, document or other thing of that kind, and

(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.

However, a law enforcement officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided.

(9)    In this section: "law enforcement officer" means a police officer, or a member of staff of one of the following agencies, who is responsible for an investigation into a matter that involves the suspected commission of an alleged offence:

(a) the Law Enforcement Conduct Commission,

(b) the New South Wales Crime Commission,

(c) the Independent Commission Against Corruption.

"statutory publication restriction" means a prohibition or restriction on publication that is imposed by or under:

(a) section 176 (Disclosure and use of examination material) or 177 (Disclosure and use of evidence given at examination) of the Law Enforcement Conduct Commission Act 2016 , or

(b) section 45 or 45A of the Crime Commission Act 2012 , or

(c) section 112 of the Independent Commission Against Corruption Act 1988 .”

61. Section 15A of the DPP Act is couched in the language conventionally used to describe a prosecution’s duty of disclosure to an accused. The Second Reading Speech “… made it clear that s 15A was intended to reflect the common law obligation of police disclosure”: R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123 at [107] per McColl JA (RS Hulme and Hislop JJ agreeing).

62. It is convenient now to refer to s 142 of the Criminal Procedure Act which is the other statutory provision upon which the Accused relied in his submissions and which is relevant to the obligations of disclosure. It is in this form:

“142 PROSECUTION'S NOTICE

(1)    For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following:

(a) a copy of the indictment,

(b) a statement of facts,

(c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial,

(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial,

(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial,

(e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,

(f) a copy of any exhibit that the prosecutor proposes to adduce at the trial,

(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial,

(h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case,

(i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,

(j) a list identifying:

(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and

(ii) the place at which the prosecutor believes the information, document or other thing is situated,

(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,

(l) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person,

(m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.

(2)    The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section.

(3)    In this section, "law enforcement officer" means a police officer, or an officer of one of the following agencies:

(a) the Law Enforcement Conduct Commission,

(b) the New South Wales Crime Commission,

(c) the Independent Commission Against Corruption.”

63. Section 15A of the DPP Act, and s 142 of the Criminal Procedure Act in its original form, which is substantially the same as the present, were introduced in 2001 for the first time by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001. Prior to that time there had been no statutory requirement devolving on investigating police to retain records that may have been the subject of an obligation of disclosure as the position is now articulated in s 15A of the DPP Act.

64. The purpose of the Pre-trial Disclosure Act was to introduce a process to reduce delay and complexities in criminal trials. The Act was intended to formalise the then existing system of regulation, which was a complicated combination of common law rules, prosecution guidelines, Bar Association Conduct Rules, Practice Notes and some legislation which addressed disjunctively the prosecutor’s disclosure obligation. In particular, the Second Reading Speech delivered on 6 December 2000 recorded that s 15A was intended to:

“… formalise the general duty placed on police officers to disclose to prosecuting authorities all relevant information and material obtained during an investigation of an indictable offence.”

65. Section 15A has since its introduction been amended, but not in any relevant way.

66. The statutory scheme creates a statutory duty on police officers to disclose to the DPP relevant information and documents “… that might reasonably be expected to assist the … case for the accused person”.

67. The statutory duty of disclosure by the Police does not embrace disclosure, once the DPP has exercised any function under the DPP Act, as has occurred here, to the Accused. The disclosure is required to be made to the DPP. No doubt this is because once the DPP has exercised his or her function under the Act, the parties to the proceedings before the Court are the DPP in the right of the Crown for the State of NSW, and the Accused. It is in that way that orders can be made by a Court directed to a party to the proceedings, which may enable proper disclosure to occur.

68. Although it is unnecessary to determine for the purposes of this judgment, I am of the view that the introduction into the Criminal Procedure Act of the statutory obligation of mandatory pre-trial disclosure has had the effect of replacing the general law obligation of disclosure falling on the prosecution, and has also encapsulated into statute any general law obligation falling onto Police to disclose to an accused being prosecuted on indictment any documents or information in their possession. The statutory scheme leaves unaltered the right of an accused to request a court to issue a subpoena for the production of documents.

69. As Basten JA has recently observed in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [62], in discussing the relief sought in those proceedings (which was in effect that particular documents be disclosed):

“To require disclosure, rather than compliance in terms of the duty, would be to render legally enforceable a policy which does not constitute a legal obligation; it would turn the soft law obligation, to consider, into an enforceable duty to disclose.”

There, his Honour was addressing the obligation on the DPP.

70. The touchstone for disclosure by the Police to the DPP is:

“… all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.”

71. This test requires a level of objectivity, namely that the relevant information might reasonably be expected to assist the case for the prosecution or the case for an accused. No complaint is made here about the non-disclosure by Police to the Accused of material that might reasonably be expected to assist the case for the prosecution.

72. The submissions here concentrate on the question of whether the Police had complied with the disclosure to the Director of any document or information which might reasonably be expected to assist the case for the Accused.

73. As the statute set out above demonstrates, the relevant test for the DPP, in compliance with s 142 of the Criminal Procedure Act is that, in addition to providing material upon which the prosecution intends to rely, if the DPP is in possession of a copy of “any information, document or other thing”, whether provided by Police or otherwise which has not previously been disclosed to the Accused, then disclosure must be made of it if that information “…would reasonably be regarded as relevant to … the defence case”: s 142(1)(i) of the Criminal Procedure Act.

74. Both statutory provisions refer to the notion of the “case for the accused” or “the defence case”, and what may reasonably be regarded as relevant, or of assistance, to that case.

75. Accordingly, it is necessary to identify what in these proceedings is the case for the Accused.

The Trial Issues

76. In Court on 3 March 2017, when the Accused was first arraigned, the Accused’s counsel informed the Court that the Accused accepted that each of the seven Events, to which earlier reference has been made, occurred, and that those Events involved a number of criminal offences. He informed the Court that it was in issue that:

1. the Accused carried out any of the offences arising from Events 1 to 7 inclusive;

2. the Accused was in any way at all involved in, or legally responsible for, any of the Events and any of the offences arising from those Events;

3. the Accused had sufficient knowledge or expertise to have carried out the offences alleged; and

4. having regard to the facts and technical aspects of what occurred, the Accused was not capable of committing the offences.

77. The Accused has not filed or served a Notice of Alibi in accordance with s 150 of the Criminal Procedure Act. The prescribed period has now elapsed. The Accused has not sought leave to adduce evidence in support of an alibi.

78. During the course of the investigation, as was his legal entitlement, the Accused declined to accept any of the offers made by the Police to undertake a formal recorded interview. No adverse inference can be, nor is, drawn against the Accused because of this. However, in considering what the case for the Accused is to be at trial, this obvious source of information is not available in this case.

77. At the conclusion of the Crown Opening on 15 May 2018, the Accused’s lawyers, whilst reserving their right to make a further opening, made some opening remarks which helped identify the likely issues for trial. They described what happened with the Family Court and its Judges as being “unequalled in Australian history” and “… appalling beyond measure”.

78. These remarks did not suggest that the issues had changed from anything which had been said earlier. The fact that the Events occurred and that offences were committed was not mentioned as a matter in issue during the opening remarks. However, the remarks made clear that the Accused denied any involvement in the proceedings and that the Crown case, insofar as it alleged that he had the appropriate expertise and physical capacity to enable him to create the bombs, put them in place and detonate them, was wrong. As well, it was indicated that the Accused would contend that the circumstances of and surrounding the proceedings in the Family Court between he and his former wife, Ms Blanchard, were respectful and within ordinary parameters of litigation regularly conducted in the Family Court during the 1980s, and did not give rise to the existence of the motive alleged by the Crown, or any motive at all to commit the offences.

79. Ultimately, the Accused indicated that it would contend that the Crown case that he committed these offences “… defies rational sense”. Mr Conolly for the Accused went on to say:

“There is not one scintilla of evidence against this man, except some DNA which the defence will show has been very poorly cared for. The defence is facing the difficult issue today of how to deal with evidence that has been so poorly cared for.”

82. As well, a comment was made during these opening remarks which suggested that the former wife of the Accused may have wrongly formed the view, which she made known, that the Accused was responsible for the offence.

83. Therefore, doing the best one can to glean from various remarks on different occasions as to what the Accused’s case is, it can be best encapsulated by saying that the Accused has not given any exculpatory version or account of his conduct, but approaches the proceedings by denying that the Crown can prove that he was motivated or qualified to commit the offence, and that the Crown evidence is not capable of proving that he did. Included here is that the DNA evidence is either not admissible because adequate care has not been taken of the exhibit upon which the DNA was discovered, or else, if admitted, it is unlikely to be of sufficient weight to warrant a conclusion that the DNA is his.

Legal Principles Surrounding an Adjournment

84. An adjournment of a trial is discretionary decision by the Court upon the basis that it has been persuaded that an adjournment is appropriate in the interests of justice in the particular case.

85. In Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at [31], Mason CJ and McHugh J determined that it was necessary for the Court to adjourn the proceedings, or grant a permanent stay, to be persuaded that such a course was necessary to prevent an unfair trial. At [38], Mason CJ and McHugh J referred to the need for the trial Judge in that case to consider “… exercising his discretion to adjourn the matter on the ground that there was a real likelihood that the applicant would not receive a fair trial.”

Issues Requiring Adjournment

The Disclosure Issue

86. The lawyers for the Accused submitted that there has been, with only a minor exception, a complete failure by the DPP and the Police to produce the original notebooks and duty books of those involved in the investigation in the 1980s, and of those involved in the recent re-investigation of the Events commencing in 2013 up to the present time. As well, the lawyers for the Accused submitted that they are entitled to have documents touching upon or revealing any attempts made to locate the various original notebooks and duty books.

87. As identified earlier at [51(b)], in the submission of the lawyers for the Accused these primary documents are ones which ought be disclosed as a matter of course.

88. It is necessary to keep in mind that on this application, the Court is not dealing with identification and production of documents in the context of a Royal Commission, a Special Commission of Inquiry or a Coronial Inquest. The context in which documents are sought to be obtained is the criminal trial dealing with the offences on the Indictment presented by the Crown. As earlier noted, it is a matter for the parties to determine what the issues in the trial are. It is does not follow from this that all records of whatever kind, including all primary documents, automatically fall within the obligation of disclosure by the DPP. On the contrary, documents or information which the DPP is obliged to disclose must be relevant to the case being presented either by the Crown or the Accused.

89. The case being presented by the Crown is a largely circumstantial one. Oral evidence will be called from a large number of lay witnesses, including police officers. The Crown Brief which has been served in this case, consisting of approximately 19,150 pages, comprehensively covers the evidence which is to be given by the witnesses whom the Crown will call.

90. It seems that the inadequacy of disclosure depends upon the proposition that the prosecutor’s obligation of disclosure in a criminal trial is, in substance, no different from an order for discovery in civil proceedings. It has never been described in those terms.

91. The prosecutor’s obligation at general law requires a sensible appraisal to be made by a prosecutor of whether documents or information is relevant to an issue in the case.

92. I am not persuaded from the material put before the Court in Ms Ramsay’s affidavits, nor in her submissions, that a failure by the prosecution to disclose all of the primary documents in the way in which I have described above, has been established.

93. Much less do I accept the proposition that needs to be established, which is that the DPP is in possession of all of this material, and has failed in accordance with the obligations under s 142(1) of the Criminal Procedure Act to disclose the material to the Accused.

94. As earlier explained, the obligation of disclosure which is now contemplated by the legislation requires the Police to disclose material to the DPP. It is a matter for the DPP to consider that material and then, subject to the provisions of s 142, to disclose it to the Accused.

95. To the extent that the Accused takes the view that there is material remaining in possession of the Police, then that is to be addressed by subpoena and not under a general law obligation.

96. The material presented to the Court on the June Adjournment Application did not establish that, by the application of reasonable objectivity, any of the documents described under this general disclosure category would be required to be disclosed.

97. To the extent that in oral submissions the lawyers for the Accused submitted that they were either embarked upon, or were intending to embark upon, an exercise which necessitated an examination of the general adequacy, competence or integrity of the Police investigation, and that they needed the primary documents to satisfy themselves as to what enquiries had been made, by whom and with whom the enquiries had been made, what the content of those enquiries were and whether, if enquiries were not made, why that was so, it would appear that this is an attempt by the lawyers for the Accused to examine the original documents to see if any relevant information exists in those documents which may become relevant in the course of the proceedings.

98. This necessarily fails the threshold that for documents or information to be required to be disclosed, those documents or that information must be relevant to the case for the Crown or the Accused.

99. I am unpersuaded that there has been inadequate disclosure by the Crown. I am equally unpersuaded that there is any need for an adjournment based upon this issue.

The Experts Issue

100. The Accused submitted that there had been a failure by the DPP to make available to the Accused all of the underlying worksheets, notes and correspondence with or from experts retained either by the Police or the DPP during the course of the investigations and, as well, for the purpose of giving evidence at the trial. It was submitted that, as a result, the Accused had been delayed in instructing experts and, as a consequence, obtaining any expert reports.

101. A particular example was put forward with respect to the working notes and underlying documents from FASS. It was submitted that the DPP had not disclosed the 1985 file of the testing by FASS of bloodstains on a piece of carpet and some cardboard recovered from the remnants of the Kingdom Hall, which was destroyed by a bomb (Event 7). It was also submitted that more recent testing undertaken in 2017 had not been the subject of disclosure of laboratory records and the like.

102. It is to be observed that, in the course of the committal hearing, a subpoena was issued to FASS for its laboratory file. As earlier observed, documentation was produced and no complaint was made about the inadequacy of production. No explanation was given in the evidence as to what may have become of any copy of this material in the hands of the Accused’s then lawyers.

103. The Accused has issued a subpoena to FASS to obtain production of documents, and these documents have been recently produced.

104. In the course of the February Adjournment Application, the Accused informed the Court of the need for a period of about three months in order to instruct experts and obtain appropriate source documents. In the course of this application, it was submitted that whilst experts had been retained, they had not yet been asked to prepare reports because of inadequate disclosure of original and underlying documents, including documents which accounted for continuity of exhibits.

105. It is unnecessary to resolve the question of whether the DPP’s obligation under s 142 of the Criminal Procedure Act required it to disclose the existence of laboratory records of all testing done with respect to expert opinions being led at the trial.

106. In my view, even if the Accused was to retain experts now, and seek reports from them, there would be no need to adjourn these proceedings.

107. The first expert to be called by the Crown is number 47 on the witness list. It can be confidently predicted that it will be many weeks before that witness is called.

108. If, by the time that expert is due to be called, and notwithstanding their best and most diligent efforts, the Accused has not obtained an expert report in that expert’s expertise, then application can be made at that time to defer taking the evidence of that expert until the Accused has a report. It will be a matter for consideration at that point in time. The fact that the Accused does not have all of his expert reports at this stage does not mean that there ought be an adjournment of the whole of the trial.

109. Orders made in the course of proceedings for the proper management of the trial can deal with any delay by the Accused in obtaining these reports, upon the assumption that the Accused has acted diligently in seeking them.

110. It was put for the Accused that he is entitled to have the expert reports available to him before his lawyers are required to make an opening statement of the kind contemplated by s 159 of the Criminal Procedure Act, but that opening statement is of a very limited kind. It was a short statement intended to articulate the issues which are likely to arise in the course of the trial. The remarks of Howie J in R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 at [135]-[155] are apposite.

111. I am not persuaded that the whole of the trial needs to be adjourned to enable the Accused to obtain expert reports before the commencement of the trial.

The Continuity Issue

112. The Accused submitted that there was an absence of disclosure, or any adequate disclosure, of all documents in any form relating to the continuity of exhibits, including original documents recording where exhibits were located at various crime scenes and how those exhibits were dealt with both initially and during extended periods of storage.

113. To the extent that the claim for disclosure of these documents depended upon the basis articulated about the obligation of disclosure extending to all primary documents, then the claim for inadequate disclosure is not soundly based.

114. The Crown Brief contains references to numerous exhibits and items found at the scenes of each of the Events. Some, but not all, of those items are to be tendered. Observations and opinions are to be expressed with respect to some of those items. Photographs of some of the items are to be tendered. Some of the items have been destroyed in the course of testing.

115. To the extent that any of these items or exhibits, marked as such by Police, are tendered by the Crown, then if put to proof by the Accused, the Crown will have to adduce sufficient evidence to satisfy the Court that the exhibits ought be admitted.

116. Because such evidence is relevant to the Crown case, and is evidence which is to be called, then it will have been revealed in the Crown case.

117. To the extent that that evidence raises any particular issue, or requires the production of any particular document, and there is a legitimate forensic purpose for the production of such document, assuming it has not already been produced, then it is open to the Accused to seek such document by subpoena.

118. There was nothing demonstrated in the course of submissions to lead to the conclusion that there had been inadequate disclosure of material relevant to continuity of exhibits in accordance with the DPP’s obligations.

119. Of course, if the Crown cannot prove the continuity of an exhibit in circumstances where such proof is necessary for the admissibility of the exhibit, then the exhibit, being inadmissible, will form no part of the evidence in the case.

120. I am not persuaded that there has been such a failure of disclosure by the Crown as to warrant an adjournment.

The CP Notice Issue

121. The Accused submitted that there had been a failure by the DPP to fully comply with the provisions of s 142 of the Criminal Procedure Act, in particular s 142(1)(m).

122. In particular, the Accused drew attention to the fact that some witnesses had made statements which the Crown did not intend to rely upon in evidence, and the fact of those statements was revealed only through material obtained on subpoena. As it happened with the particular identified statement, the Crown was able to point to the fact that the statement had been earlier served as part of the Police Brief during the course of committal proceedings.

123. But the underlying issue is whether the Crown has complied with the particular sub-section of the statute.

124. The Accused’s lawyers did not take the Court to the Prosecution’s Notice under s 142. It did not draw the Court’s attention to what had or had not been produced, particularly in answer to s 142(1)(m). The lawyers asserted in submissions that such a list had not been provided.

125. What is clear from the Crown Brief is that a comprehensive index of every witness whose evidence is to be put before the Court has been provided. That index provides reference to any statement, the substance of which is to be adduced in evidence.

126. The Accused has simply not demonstrated any non-compliance, by reference to the Prosecution’s Notice, of what was in fact served by the Prosecution and its inadequacies. I am unpersuaded that any adjournment is required because of a failure to comply with s 142 of the Criminal Procedure Act.

The Witness Issue

127. An Order of Witnesses was served a considerable time ago by the Crown. At the time the Order of Witnesses was served, it was indicated that the order was that which was proposed.

128. During the course of submissions on one or more interlocutory hearings, it was submitted by the Accused that it would be more convenient if witnesses surrounding Events 6 and 7 were called first rather than, as the Crown then proposed, at the end of the witness list.

129. The Crown re-ordered the first 55 witnesses to be called, and brought forward the witnesses principally concerned with Event 7, including the experts whose evidence is central to Event 7.

130. Initially, it was submitted by the Accused that this late change in the order of witnesses placed a significant burden on the Accused’s preparation for trial such that the trial needed to be adjourned to enable that to occur.

131. However, when the alternative was put to the lawyers for the Accused, namely that the Crown simply call the evidence in the order in which it was originally intended, rather than the amended order which reflected the comments of the lawyers for the Accused, it appeared from submissions made that the proposed new order of witnesses was a sensible and preferred option and that the lawyers for the Accused did not wish the Crown to “… revert to the old order”.

132. The submission which was pursued was that there was simply not enough time to enable the Accused to be ready to cross-examine these witnesses.

133. The evidence of these witnesses has been available to the Accused either in the course of the committal proceedings, or certainly it has been served by the Crown in the course of the proceedings in this Court.

134. It was not suggested that any of the evidence that these witnesses will give was served very recently.

135. With respect to the evidence which was to be led, whilst I accept that the Accused’s preparations will need to be re-ordered, I do not accept that an adjournment of the proceedings for a further period is necessary. The Accused’s lawyers have had the Crown Brief for a considerable period of time, and statements of the witnesses to be called have been available since the time of the committal, and in any event prior to February 2018. Nor do I accept that such a further period of delay is justified in circumstances where the Accused has been in custody for about three years since his arrest, and where there have already been a significant periods of adjournment to accommodate the capacity of the Accused’s lawyers, who were only instructed in late January 2018, to be ready for trial.

136. I am unpersuaded that the re-ordering of the witnesses has caused any prejudice to the Accused of a kind which would be remedied by an adjournment as sought.

Conclusion

137. For these reasons, I am unpersuaded that the June Adjournment Application ought be upheld.

138. I am not satisfied that it is in the interests of justice to grant such an application, and I am not satisfied that it is necessary to grant such an application in order to prevent any likelihood of an unfair trial to the Accused.

Orders

139. I make the following orders:

1. The Amended Notice of Motion filed in Court on 3 July 2018 by the Accused, which has been referred to as the ‘June Adjournment Application’, is dismissed.

2. In light of the time occupied this week for the hearing of the unsuccessful June Adjournment motion, I direct that the hearing of evidence in the trial is to commence at 10am on Monday 16 July 2018.

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Amendments

18 February 2020 - Non publication order lifted on 14 February 2020.

Decision last updated: 18 February 2020