Rodi v State of Western Australia

[2018] HCATrans 137

[2018] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P24 of 2018

B e t w e e n -

PAUL JOSEPH RODI

Appellant

and

STATE OF WESTERN AUSTRALIA

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 AUGUST 2018, AT 10.00 AM

Copyright in the High Court of Australia

MR M.D. HOWARD, SC:   May it please the Court, I appear for the appellant with my learned friend, MS R.R. JOSEPH.  (instructed by Norton Rose Fulbright Australia)

MS A.L. FORRESTER, SC:   May it please the Court, I appear for the respondent with MR L.M. FOX.  (instructed by Director of Public Prosecutions (WA))

KIEFEL CJ:   Yes, Mr Howard.

MR HOWARD:   May it please the Court, there are effectively three appeal grounds, although there are two formally.  The first is that there was fresh evidence which raised the significant possibility that the jury, acting reasonably, would have acquitted the appellant if that fresh evidence with the evidence at trial had been before the jury.  That is the first ground.

The second ground is really two, in the sense that it raises non‑disclosure, but it does so firstly under the Criminal Procedure Act and then, secondly, under the common law.

If I can turn to the first ground, that of the fresh evidence, the question of whether there was with the fresh evidence a significant possibility that the jury, acting reasonably, would have acquitted the appellant comes to an assessment of how the trial may have run with that fresh evidence.  We say that there are three principal impacts or effects of that fresh evidence, if they had been available.

The first is that it may have led the jury, certainly increased the chances of the jury, accepting the appellant’s evidence at the trial that the cannabis came from his own two plants.  Secondly, we say that it would have opened up significant lines of cross‑examination of Detective Coen at the trial.  Your Honours will know that Detective Coen was called as an expert witness and in the way that the trial unfolded could probably fairly be described as the principal prosecution witness. 

We say that there are three lines of cross‑examination which would have been opened up.  The first is as to what his expertise was based on; secondly, why he had changed his view as to yield, and that would have opened up the third which was going to the range that he had himself actually observed.

There is always an element of speculation.  But, in this case, the task of speculating is made somewhat easier – or, perhaps, one can do it more confidently – because there was cross‑examination in the Court of Appeal of the detective by the appellant, in person, as it turned out ‑ but one can see in that cross‑examination what may have occurred at the trial with the benefit of what we have called the prior Coen evidence.

In the written submissions, we seek to set out some of those in paragraphs 20 and 21 where there is capturing, particularly in paragraph 21, of some of the evidence that the detective gave in cross‑examination in the Court of Appeal.  And, your Honours will recall, of course, his evidence in‑chief at the trial, which was unchallenged largely, was that the typical yield was between 100 and 300 grams per plant. 

But in the Court of Appeal in cross‑examination, as we say in paragraph 21, quite a different picture emerged.  So at the higher end of the range - the detective revised that evidence, as your Honours will see in 21(a) and 21(b) in the appeal submissions, that he had seen cannabis plants in the 500 to 600 gram range and he would not be surprised by that and we have cross‑referenced in the submissions back to the Court of Appeal where that evidence is set out. 

It is of significance to note, as his Honour Justice Mitchell did in dissent, that the sort of qualifications that the detective made in the Court of Appeal in his cross‑examination evidence was not given or made in his evidence at the trial.  Your Honours will find that within the judgment of his Honour Justice Mitchell at appeal book page 84 in paragraph 213.  So his Honour Justice Mitchell, referring to the evidence that we have drawn the Court’s attention to in the written submissions, then in paragraph 213 says:

It is noteworthy that Detective Sergeant Coen did not qualify his opinion in this manner when he gave evidence at the appellant’s trial.

GORDON J:   The position really is that the middle lines extracted from that transcript at 212 about whether he had seen cannabis plants yield over 500 grams, et cetera, stands in stark contrast with the way in which the prosecutor had closed.

MR HOWARD:   With respect, exactly, your Honour, and that is one of the things – that is the third impact of the fresh evidence, we say, that the prosecutor would not have been able to close in the way that she did.

BELL J:   There is no evidence as to whether defence counsel was alerted to the evidence that the prosecution proposed to adduce as to typical yields earlier than the morning the evidence was given.  Is that right?

MR HOWARD:   It is, with respect, your Honour.

BELL J:   So that if one accepts that there may have been some communication to the defence, the reasonable inference is that was not before the morning that Detective Coen gave the evidence?

MR HOWARD:   Yes, and it appears from the cross‑examination of the prosecutor, Ms White, who told the Court of Appeal, and it was accepted, she did not have an actual recollection of raising the matter with defence counsel but she said from objective facts, I think namely the email that she sent to the detective the night before the conversation she had with the detective on the morning of the trial, that she, working from what she would have done, expected that she had a quick conversation with defence counsel.  But that is as much as she was able to contribute.  She had no actual recollection.

BELL J:   So, the forensic decision that was made to not press Detective Coen on the expression of that opinion was one made in the course of the trial in circumstances in which there had been no prior notice.

MR HOWARD:   Yes, and quite so.  Whatever the notice that was given, if it was given on day two when Detective Coen gave his evidence, the highest or the most that could be said about it was that it was disclosed quickly, orally, to defence counsel before court came back in on that morning.

NETTLE J:   Undoubtedly, it would have been no more advantageous to the accused than the evidence, in fact, given by Detective Coen.  But, the disclosure would have been, presumably, in the same terms as his evidence in‑chief.

MR HOWARD:   Yes, of course, your Honour, because the prosecutor gave evidence in the Court of Appeal which was also accepted that she did not know of the prior – the different evidence which had been given before.  She did say, in the Court of Appeal, that she had known that the detective had given yield evidence before but she did not know that he had given different yield evidence before.  So, the disclosure, such as it was, would have been exactly, with respect, as your Honour Justice Nettle puts it. 

NETTLE J:   It is a stark contrast.

MR HOWARD:   Yes.

BELL J:   And, Detective Coen was conscious of the significance of the alteration in his opinion since when required to include an opinion on yield in a statement, he said he always included the fact that his opinion had changed.

MR HOWARD:   Yes, quite so.  And, that is in the statements that he made in the Bernhardt matter which is in the appellant’s further materials at pages 24 to 36 but, especially, at page 29 in paragraphs 43 to 45.  That evidence was given in May – that statement was signed in May 2013 – as well as the evidence that he had signed in the McCully matter on 18 September 2013.  That is at the appellant’s further materials, pages 37 to 50 and, especially, at pages 41 to 42 where the previous range is given.

BELL J:   Moreover, Detective Coen was aware that while his own opinion had altered in favour of a lesser yield, other officers, with drug investigation experience, adhered to the higher yield as the estimate.

MR HOWARD:   Yes.  And, the Court will find that – your Honour Justice Bell is correct.  But, to reference that, it is to be found in Justice Mitchell’s judgment at page 85 of the appeal book at the top of the page in paragraph 214.  I think it is – going back to the transcript in the Court of Appeal, I think it is Detective Robson, at least, who still was giving that evidence.

In addition to what we seek to identify in paragraphs 20 and 21 of the written submissions, there is one more piece of evidence that came out in cross‑examination in the Court of Appeal, which was how the detective had come to change his mind.  Your Honours will find that at page 83 of the appeal book in the judgment of Justice Mitchell, in paragraph 211.

To give your Honours the introduction to this, questions were asked of the detective in cross‑examination in the Court of Appeal about the change in his opinion because what he had said was ‑ and without wishing to jump around too much, if I can take your Honours firstly to the appeal book at page 48 so your Honours can see the explanation he had given in his affidavit in the Court of Appeal.  At appeal book 48, paragraph 79, his Honour Justice Buss extracts some paragraphs from the detective’s affidavit in the Court of Appeal and your Honours will see in paragraph 11, within paragraph 79, that the detective says:

I reduced this estimation as a result of further knowledge I had been acquiring through cannabis yield experiments and from speaking to growers of cannabis more about the subject.

So that was the explanation he gives in the Court of Appeal.  Then if I can take the Court back to page 83 in the appeal book and into paragraph 211, now in the judgment of Justice Mitchell, so in cross‑examination, when he was asked about these further experiments, the evidence was, in the relevant time period, when I am changing my opinion, I have done six experiments.

Of those six experiments, five were in relation to hydroponically grown cannabis plants and only one was in relation to naturally grown cannabis plants done at Harvey.  Your Honours will see that towards the foot of appeal book 83.

That leads his Honour Justice Mitchell, within the course of his judgment, to say that the question of expertise and the further experiments would have been opened up effectively and were of significance to the way that the trial ran.  So they are the principal lines of cross‑examination that we say is the second impact on the trial if the fresh evidence had been before the jury.

The third is, as your Honour Justice Gordon alluded to before, it would have changed the prosecutor’s closing.  If I can take the Court to appeal book 45 – it is done in both of the judgments, but in the judgment of his Honour the President, your Honours will see in paragraph 62 and then over onto 63, extracts from the prosecutor’s closing. 

What I would seek to draw your Honours’ particular attention to is the second full paragraph within the quotation in paragraph 62 which starts at about line 25, with “And you see”, and the prosecutor, at the end of the second line, says:

And the fact of the matter is . . . that there are a couple of lies, and those lies are the crux of what the State says you can use to find that he’s unable to satisfy you on the balance of probabilities because it is a lie, it is fanciful, there is no expert evidence that anyone could possibly grow 530 grams of head material on one plant.  And therein lies the key.  He got that bit wrong.

Then at the foot of that page, still within paragraph 62, your Honours will see after a reference to whether it was leaf or head, starting in the second sentence:

And so the evidence that you have is that you have over 500 grams of head material and the expert says [that he has not seen that much head material grown on a cannabis plant] before in his experience.  This is a naturally grown plant.  Give [the appellant] the benefit of the doubt, maybe 200 grams would be a good crop.  But here he is saying he got more than double.

So, it is obvious the use to which the prosecutor made of that evidence.  Can I also just – it is not in our written submissions, I do not think ‑ but take your Honours to how the trial judge summed up in page 11 of the court book.  At about line 8 or 9 the trial judge says to the jury:

Now, the State through Ms White says you should disbelieve Mr Rodi’s account of how he came to be in possession of the cannabis and as to what he intended to do with it.  I’m not going to go over what she said to you in her closing speech.  It’s still ringing in your ears, as is Mr Skerritt’s closing speech.

There were, said Ms White, a number of areas where she said or suggested to you that Mr Rodi had been untruthful.

That then leads to about line 30.  The trial judge says:

So the State says that you should not accept his evidence in relation to what he was going to do with this cannabis.

Which is obviously a reference to the intent to sell or supply.  Then on page 14 of the court book and at about again line 25 or 26 the trial judge says:

The State, as I say through Ms White, points to the circumstances, the quantity of cannabis, the three plants, whether or not they could have had that yield and so on and so forth.

Then there is a discussion about other aspects or paraphernalia or other indicia whether they are present or not.  So, the prosecutor, we say, could not have closed in the way that she did if that fresh evidence had been available.  It would have been a very different closing.

So in answer to those impacts that we contend for at the trial, as we understand what is put against us, it is essentially twofold.  The first is that we are focusing – the appellant is focusing on the typical yield evidence rather than focusing on what the detective’s evidence was about the actual two plants.  Then, secondly, it is put against us that because the majority below found that the detective’s change of opinion or his explanation was cogent and credible the prior Coen evidence would have had a limited, if any, impact on the jury’s evaluation of the evidence as a whole.

Can I turn to the first answer that is put against us?  What we say is that your Honours will find, to make an assessment of that, if I can take you to appeal book at page 42, and within that – so it is part of paragraph 48 of his Honour Justice Buss’s decision, but we are on page 42 – what your Honours will see is that the evidence – in fact, I apologise, I should have started with the page before, at 41, with the extract that starts in paragraph 47. 

So the detective deals with typical yield and he is then talking about the scale.  We emphasise this in the reply.  Again, your Honours will note that there is no qualification of the sort that he made in the Court of Appeal.  He is saying, at about line 30:

I’ve done those yield experiments on naturally grown cannabis plants as well.  So 100 – on average, 100 is like the lower end of the scale.

Your Honours will see that we have quoted it.  So that is if you like the reference to the experiments he has done.  As we know that turns out to be one experiment at Harvey, a naturally grown, when he is changing his mind and he is then talking about the scale, without qualification.  That then leads into the evidence that I was taking your Honours to on page 42 at about line 12 where he comments that:

I don’t think that all the cannabis at the house is from those two plants out the back.

Then, coming down to about line 27 or so, still within the quotation, perhaps four lines up, he says:

I wouldn’t expect a plant that size naturally grown, since they were out the back, to yield on the higher end of that 100 to 400 gram scale.  I’d expect them to yield on the lower end of the 100 to 400 gram scale -

What is put against us, as we understand it, is, well, he was only ever giving evidence about typical yield rather than about law and what you are attacking - the appellant, what you are attacking is evidence about typical yield rather than looking at the evidence he gave about the actual plants. 

What we say about that is that the detective was only giving expert opinion evidence.  He had not been to the house, he had not been – he had not executed the search warrant, he had not physically seen the plants.  He was looking at the video and he was making an assessment from the video and that necessarily, we say, means that he working from what his evidence was as to typical yield. 

The two are inextricably bound.  They are not able to be separated in the way that the respondent would have it and that has significance.  I have shown your Honours, if you like, the course of that evidence.  He starts with typical.  He is then talking about the scale.  He is not qualifying that evidence in the way that he did in the Court of Appeal that we have already looked at and he is then saying necessarily from that typical yield, from that typical basis, I am expressing a view about these particular plants and, as I say, without qualification. 

So we do not accept that we are conflating unfairly typical yield with the evidence about the actual plants.  To make good that proposition what we say is that when you look at the way the participants in the trial, particularly the prosecutor, apprehended the detective’s evidence it did not draw that line that the respondent now seeks to draw.

GORDON J:   I notice that the trial judge in the closing of the charge to the jury at core appeal book 16 at line 33 or so in effect addresses this issue with respect to Coen’s evidence by acknowledging or pointing to the fact that it was expert evidence, not having seen the plants and doing it by video, and says it was unchallenged. 

MR HOWARD:   Yes.  In terms of whether there was this line or distinction drawn between the typical yield evidence about these plants a sure guide is also, we say, provided by the prosecutor’s closing which I have taken your Honours to where very much the evidence about the particular plants derives exactly from the evidence about the typical yield and there is not the distinction that is sought to be drawn by the respondent now. 

The second answer that is put against us, as we apprehend it, is that because the majority found the detective’s explanation to be cogent and credible then it would have had limited impact on the jury’s evaluation of the evidence as a whole.  We note that that does not really address the issue of the lines of cross‑examination that may have been opened up in front of the jury and one can see between the members of the court, the majority and his Honour Justice Mitchell, a difference of assessment about the cogency of the detective’s evidence. 

If I can take your Honours to the appeal book at page 88, towards the foot of the page, paragraph 227, your Honours will see a different assessment made of the detective’s change of evidence, starting at about line 35 or 36, in the sentence that starts:

The degree of the change in his evidence, and the general statement of the reasons for the change, was capable of calling into question the existence and extent of Detective Sergeant Coen’s expertise to give opinion evidence about the yields of head material produced by cannabis plants.

Your Honours will also see, in the paragraph 228 going over on to page 89 of the appeal book, that his Honour Justice Mitchell, starting at the end of line 3, beginning of line 4, describes:

The unsatisfactory basis for the opinion expressed at the appellant’s trial -

Then there is a reference to the experiments.  There is then a different assessment which is made.  What we say about that is notwithstanding that the majority found that it was cogent and credible his Honour Justice Mitchell was somewhat less impressed and we say that points only to the fact that it may well have been a matter of some significance to the jury and something that obviously reasonable minds could differ about.

His Honour Justice Mitchell was particularly – I have taken your Honour to the passages.  What we say in our submissions at paragraph 35 is that that is ultimately of course a question for the jury and we point to the difference in opinion as being a matter of reasonable opinions that was a matter for the jury rather than for the majority.

Something that your Honours might also have noted is that in the Court of Appeal the detective gave evidence that he always prefaced his evidence with a qualification.  Your Honours will see that – if I can take the Court to page 50 of the appeal book.  In Justice Buss’ paragraph 83, your Honours will see towards the foot of page 50, over on to page 51, that the detective says:

So I always preface it by saying, if someone said, ‘Could [a] cannabis plant yield less than a hundred?’  I would say, ‘Yes, it’s possible.’  ‘Could it yield more than 400 grams?’  ‘Yes, that’s also possible.’

He is asked by the appellant:

So you’ve seen cannabis plants yield over 500 grams -

The detective says:

500 [g] and 600 [g], yes.  In fact, some plants, I did a yield experiment on fell between that 500 [g] to 600 [g] range.

So it’s quite possible that a plant could yield that much, and you wouldn’t be surprised?‑‑‑Yes, that’s right . . . 

I’ve never not said that -

says the detective.  What we would compare that with is the evidence he actually gave in the trial of the appellant where there was no such prefacing or qualification and also I do not need to take your Honours to it but your Honours have the transcript of the relevant parts of the Challis trial at the appellant’s further materials, page 7, lines 10 to 23, where the evidence is given and again there is no prefacing.

Can I turn to the first part of ground 2 and perhaps introduce it by explaining perhaps how the matter unfolded in the Court of Appeal below.  Your Honours will ‑ ‑ ‑

NETTLE J:   Can I just ask you, to succeed on this ground do you have to establish that had there been compliance with the alleged duty of disclosure there is a significant possibility that it would have resulted in an acquittal?

MR HOWARD:   No, your Honour.

NETTLE J:   You say it is enough simply to establish the breach of disclosure obligation?

MR HOWARD:   Yes.  I do not want to call it a throwaway, but in paragraph 38 of the written submissions ‑ ‑ ‑

GORDON J:   Of your written submissions?

MR HOWARD:   Yes, your Honour ‑ the reverse might be the case, which is in the sense that if the Court were to find that ground 2 non‑disclosure had been made out then there are some statements that are made in ‑ ‑ ‑

GORDON J:   Grey.

MR HOWARD:   Yes, your Honour.

NETTLE J:   They talk at the end of it all coming down to whether or not there was a miscarriage of justice in Grey.

MR HOWARD:   Yes.

NETTLE J:   As if it were necessary to show that it could have made a difference.

MR HOWARD:   I may have misunderstood your Honour Justice Nettle’s question before.  With the fresh evidence, if the Court were to find that there was the significant possibility of an acquittal ‑ ‑ ‑

NETTLE J:   Then you get a new trial.

MR HOWARD:   Yes.

NETTLE J:   Do you have to show a significant possibility on the alleged breach of obligation of disclosure?

MR HOWARD:  On the obligation of disclosure, we say that, as we understand the authorities, leaving aside the question of the interaction of the two grounds, and particularly taking into account the Court’s recent decision in Kalbasi, that a failure to disclose would be an irregularity or failure of the process.

NETTLE J:    Certainly a miscarriage.

MR HOWARD:   Yes.

NETTLE J:   The question is, is it a substantial miscarriage of justice?

MR HOWARD:   Yes, and we would say it is because, drawing on the authorities summarised in Kalbasi, particularly at paragraph 15, there will be some failures which deprive the appellate court of the ability to make an assessment and, if credibility is an issue and it goes to credibility, then that is one of the cases where we say, based on what the majority says in Kalbasi, that this Court or an appellate court is not able to make the assessment that it needs to make and, whatever formulation of words is used, the Court could not be satisfied affirmatively that the appellant would inevitably have been convicted.

NETTLE J:    Yes, I see.

BELL J:   And the difference here is, on one view, quite significant because one is looking at a significant possibility that a jury, acting reasonably, would have acquitted in circumstances where you bear the onus as distinct from, on your ground 2, your argument is if it is accepted that there was material non‑disclosure that is an irregularity that is, undoubtedly, a miscarriage and, given that it goes to issues of credibility and the assessment of Detective Coen’s evidence, one could not conclude that issue against the appellant.

MR HOWARD:   Yes, we would accept that and we would also say that it raises of course ‑ the credibility of the appellant was very much in issue.

GORDON J:   Well, he was accused of lying, based upon Coen’s evidence.

MR HOWARD:   He was, your Honour, with respect.  So credibility for both of them was in issue that would have been affected and, in effect, on Detective Coen, the defence was deprived or precluded from an opportunity, realistically, of challenging the key prosecution witness.

NETTLE J:   Could I ask another question along the same line?

MR HOWARD:   Of course.

NETTLE J:   Do we have to get into the statute?  Is it not enough to look at the common law obligation of disclosure and for you to contend, as I understand you to do, that there was a breach of it?

MR HOWARD:   We would be content, obviously, with that outcome.  What is put against us, of course, is that the common law disclosure obligation no longer applies.

NETTLE J:   I see.

BELL J:   One difficulty with the State’s argument in that respect may be if the State’s construction of the scheme under the Criminal Procedure Act is right, there are limited duties on the prosecutor with respect to continuing disclosure.  And some might think it an odd result if, for example, as in Mallard, police failed to disclose relevant evidence to the prosecutor that the enactment of the Criminal Procedure Act provisions would exclude the common law obligation of disclosure and the recognition of the deprivation of a fair trial, which one finds in Grey v The Queen.

MR HOWARD:   And we would accept that.  And can we say that, when one looks at the statutory regime it nominates – and the State makes this very plain of course – particular people to give the disclosure by particular points in time.  So take the situation with the prior Coen evidence and if he had given the different evidence after the relevant authorised officer within the 42 days, so he gives it after the 42 days from the date of committal but well before the trial, then on the State’s argument – on the respondent’s argument – there would be no obligation to ‑ ‑ ‑

GORDON J:   The guillotine had come down and finished.  On their argument, the obligation had finished.

MR HOWARD:   Yes, and it is not continuing, as we understand it, on their interpretation, because the continuing obligations are expressly identified on the police prosecutor, if I can call him that, under section 42, or the trial prosecutor under 95(9).  But in the middle it is just a matter of luck effectively as to whether that evidentiary material is available within the time period.  We say that is a very significant indicator that there was no abrogation of the common law, for example.

BELL J:   Just to understand the disclosure provisions that were inserted into the Criminal Procedure Act, is it right that they follow the recommendation of a law reform commission in relation to, as it were, a reform of criminal procedure generally in the context of a change to committal proceedings?

MR HOWARD:   Amongst other things, yes.

BELL J:   And that change to committal proceedings reduced the availability of a committal hearing?

MR HOWARD:   Yes, your Honour.

BELL J:   So that provisions were introduced governing disclosure both in relation to summary matters and in relation to indictable matters now being dealt with under a scheme that did not involve a committal hearing?

MR HOWARD:   Yes.  What is put in terms of the abrogation is that the Attorney‑General in the second reading speech does refer to the Law Reform Commission’s recommendation that there should be a comprehensive code of criminal practice developed.  What we say about that is of course that what one needs to do as a matter of trite law is to look at the text and language of the legislation at the beginning and at the end and the mere fact - not that code is used in the Criminal Procedure Act – but the mere fact that code is used would not be enough and, in any event – and I will take your Honours to it – one can see, for example, in the decision of Saeed, which is No 20 of the joint book, at paragraphs 31 and 34, what this Court said about what the Minister might say in a second reading speech compared to what is actually written in the legislation.

We have included – and taking the authorities that we have cited, this Court has said not only – well, because of the common law rights involved, one would require unmistakable and unambiguous language.  His Honour Chief Justice Gleeson in the Electrolux matter which is then cited by this Court in Saeed says, well, that is not just a presumption.  The working hypothesis is that Parliament knows this and it is legislating accordingly.

So the Parliament objectively knows that if it wants to curtail or abrogate a common law right, especially an important common law right, then it ought use unmistakable and unambiguous language.

KIEFEL CJ:   So do you say the approach one should take to the Criminal Procedure Act is that it provides for minimum requirements?

MR HOWARD:   Yes, your Honour.  And it is interesting because what is put against us is it expands common law disclosure and so therefore one can infer an intention to replace them, and the short answer is, well, it does and it does not in the sense that it imposes particular obligations on particular people at particular times and in that sense it goes beyond the common law because it has to be done. 

One imagines if it is done properly it is done within certain time periods which the learned Attorney‑General in his second reading speech said, well, that will help with avoiding or trying to avoid late adjournments where disclosure is given late.  So, in that sense, one can say, yes, it expands on the common law or it provides a requirement in terms of the timing.

KIEFEL CJ:   Or just clearer processes.

GORDON J:   Yes, better particulars.

MR HOWARD:   Yes.  But in the other aspect, as we have seen, it can significantly lead to the curtailment of the common law disclosure obligation, because if it does not fit within one of those time buckets, then it is not going to be disclosed under the Act, or it is not required to be disclosed under the Act. 

KIEFEL CJ:   Well, you say there could be no exclusion by necessary implication arising from the statute. 

MR HOWARD:   Because the words of this Court in Coco, it is not enough even to show that the legislature has addressed its mind to the fundamental – to the common law right, one must then go further and see an intention to abrogate.  And it is interesting because what is put against is, well, section 97 of the statute, the Criminal Procedure Act, provides for consequences of non‑disclosure.  But when one looks at section 97 it is dealing with the consequences before or at trial and one sees that in subsection (2).  So the Criminal Procedure Act is within the materials, the joint book of authorities behind tab 2, and your Honours will see 97(2) on page 105 of the joint book.

What is striking, as it were, is that there is no provision made if it becomes apparent post‑trial that there has not been disclosure.  Now, one imagines the answer to that is, well, then one embarks on the sort of exercise that Kalbasi would invite and one goes through it.  But that means effectively, of course, that one is into a statutory regime which has common law consequences. 

It is not as though it is a code where, we would say, it is apparent that what was intended to be replaced was the common law in its entirety.  And, if one is then left in the position of saying it replaces some of the common law but not all of the common law, we say it is very hard, then, for the respondent to show that it was unmistakeable – that there is unmistakeable and unambiguous language to abrogate the common law disclosure right. 

So, I think that your Honour Justice Nettle asked me whether it was necessary, if the Court found a common law duty, to go back to the statute.  We would say for the Court to do that, the Court would have to find, obviously, that there had been no abrogation of the common law.  But, if the Court were to find that, then it is unnecessary to go through the arguments that we do go through within the Criminal Procedure Act.

The question of when the common law would require disclosure, we do say that it required disclosure before the trial – and I will come to the argument about why we say that in the context of the Criminal Procedure Act because the arguments on that are the same.  But, even if we are wrong about that, as soon as the detective gave his evidence on the second day of trial, the common law obligation was engaged, even if we are wrong about whether it had to be disclosed prior to the trial.  His Honour Justice Mitchell just makes a remark about the unusual way that this unfolded and if it had unfolded in a different way, then it may well have been that there would have been the appropriate disclosure. 

NETTLE J:   That is a fair enough point.  I mean, the Crown Prosecutor did not email him until 9.00 pm the night before, so the obligation to disclose really does not arise until the morning of the next day, does it?

MR HOWARD:   We accept that, your Honour.  We accept it if the Court is against us that there ought to have been disclosure pre‑trial. 

NETTLE J:   It is hard to see there could be, though.  No one was contemplating this evidence would be given.

MR HOWARD:   What we say about that is that the test, under the common law, is a question of sensible appraisal.  It is the same argument that we have advanced in relation to the Act, so can I turn to that now to explain why we contend for that?  What we say – and we say there is a different test if one follows the decision in Hughes at the Court of Appeal which is number 14 in the joint book.  The Court of Appeal in Hughes, at paragraph 48, adopts the test that one is looking at factual issues which will, or could, arise at trial.  The common law test is a sensible appraisal of an issue – I will come back to the common law test – but what we say is that ‑ ‑ ‑

BELL J:   I am sorry to interrupt but just ‑ ‑ ‑

MR HOWARD:   I am jumping, I apologise.

BELL J:   ‑ ‑ ‑ what is the difference between an assessment of the factual issues which would or could arise on the trial and the common law’s sensible appraisal of the issues?

MR HOWARD:   There is I think in PAH ‑ I will give your Honours the reference to it in a moment – a suggestion that the tests are different in the Court of Appeal.  One might think, particularly the way that we would put it in our written submissions at 66 and 67, that there is ultimately little difference between the tests, but in PAH, in paragraph 133 ‑ ‑ ‑

NETTLE J:   Did you say 133?

MR HOWARD:   Yes, your Honour, and it is in the joint book, number 17 in volume 2, starting at page 697.  At page 728, paragraph 133, is his Honour Justice Buss writing for the Court.  Your Honours will see, towards the end of paragraph, that there is a sentence which starts, if I can find it ‑ ‑ ‑

GORDON J:   It says:

In particular, the notion of “a sensible appraisal ‑

MR HOWARD:   Yes, thank you, your Honour.  So there is that authority to the effect that they are different tests.  One of the things that might be different is that we contend, on the basis of authorities, that the inquiry under section 95(6) is objective; whereas, a sensible appraisal might bring into account or may more bring into account the particular prosecutor’s assessment at the time.  Whether that is what Justice Buss had in mind in paragraph ‑ ‑ ‑

GORDON J:   I think that is reinforced by the opening sentence of 134, is it not?

MR HOWARD:  Yes.  Thank you, your Honour.  So whether that is the difference between the two ‑ ‑ ‑

NETTLE J:   It is pretty strange that an obligation of disclosure should depend upon subjective perceptions.

MR HOWARD:   We would certainly accept that, your Honour, and I think one can see ‑ and it is put against us in relation to the finding made about the reasonableness of the trial prosecutor’s understanding, which we will come back to, but we say for 95(6) at least it is objective, even if it is different at common law.

The point I was then going to address is how it is that we say the issue could have been relevant before the trial.  Obviously, we do not need to succeed on this for the common law argument but we do need to succeed on this for the argument on the Criminal Procedure Act because of the buckets of time, as I have called them, perhaps inelegantly.

At the time that the relevant authorised officer was making her assessment what was known objectively was that the cannabis had been seized from what was said to be the appellant’s house.  There were plants at the house and the allegation was that there was an intention to sell or supply and that the statutory presumption had been engaged because it was above the quantity, so the appellant had an onus to discharge. 

Now, an obvious or perhaps normal or regular way that an accused might seek to discharge such an onus is to say that it is for personal use.  One might think that is not out of the ordinary or a surprising issue that may be raised at the trial. 

Now, in circumstances where at the house plants are found, certain paraphernalia is also found, then if it going to be said or it is on the cards that it may be said that it was for personal use, the relationship between the personal use and what is found at the house becomes, one might see, relevant or potentially or could be relevant. 

So if, for example, the allegation is – or the accused says, “Well, it’s for my personal use”, but there are no implements in the house for personal use – there is no bong or there are no cigarette papers or whatever it might be – one might think that that will be relevant to the question of personal use.

But also if there are, for example, 30 plants in the backyard, that is a very different complexion on things than if there are two plants or three plants in the backyard, and the relationship between the cannabis drying in the house and those plants comes into play as an issue that could arise at the trial.  So, yield becomes, in our submission, something that could arise within the meaning that the Court of Appeal ascribes in Hughes, something that could arise objectively at the time that the 95(6) disclosure ought to be made.

BELL J:   It is a long bow, is it not?  Surely from the prosecution point of view, consistent with the way the brief was assembled, the prosecution is reasonably confident of its capacity to succeed in circumstances where there is a substantial quantity of the material, and whether it has been grown by the accused in his backyard or whether he has been purchasing it off someone is really neither here nor there, one would think, to the likelihood that an account “I had this substantial quantity for personal use” will be accepted. 

There were other things in this case that might be thought to have given some support to the defence in the case that it made in that regard, but it is asking a lot on accepting that the test involves an objective assessment to reason that the yield that might come from those plants would become a critical issue.

MR HOWARD:   I understand the force of what your Honour Justice Bell is putting to me, but the test is not whether this will arise.  The whole of the test is not will it arise at the trial; the test is could it arise at the trial?  That is important because at the time that the 95(6) disclosure has to be made the prosecution will not know, usually, what the defence will be.

BELL J:   Indeed, but it is “could arise” in the context, surely, of the case that is assembled.  As I understand your argument, the objective test required a person to consider that it may become significant to determine whether or not the two live plants in the backyard were capable of producing this amount of head material, to then seek to obtain evidence of that, although none had been obtained and there was no intention to lead such evidence, and then to identify that the person from whom one is obtaining the opinion has earlier expressed a contrary opinion.  It just seems to be asking a great deal at the point at which the brief is assembled and no question of attempting to establish that the source must have been from other than the accused’s own cultivation.

MR HOWARD:   I am also conscious of the time that your Honours wish to – I might answer this question ‑ ‑ ‑

KIEFEL CJ:   No, 11.15 we will adjourn.

MR HOWARD:   The test for evidentiary material is obviously – well, it is said to be within - and in the materials your Honours will find at pages 57 and 58.

BELL J:   What section is it?

MR HOWARD:   It is 42(1) and it is the definition of “evidentiary material” that starts at about line 20, on page 57.  So it is whether it assists the prosecutor’s case or the accused’s defence or it is a document under (e), the next page, 58, or it is a:

document or object that may assist the accused’s defence.

BELL J:   But in a case where there has been no evidence sought to be relied upon in support of the prosecution about the yield from the plants where, on the face of things, there is no reason to think that the prosecution is averring other than that the material came from the plants in his backyard.

MR HOWARD:   I accept what your Honour is putting to me but within the words of the statute the timing of 95(6), which links back to this definition, is going to happen almost always, we would suggest, before there is any knowledge on the prosecutor’s part of what the defence might be ‑ ‑ ‑

BELL J:   I accept that completely, Mr Howard, but the way this issue developed it might be thought was somewhat serendipitous.

MR HOWARD:   Certainly, his Honour Justice Mitchell said it was an unusual way it developed.

KIEFEL CJ:   Could it be that the Criminal Procedure Act is less likely to apply to evidence tendered by the prosecution in the course of a trial where the accused is attempting to rebut a presumption?

MR HOWARD:   The difficulty again is finding some words of limitation within the statute to that effect.  In our respectful submission, the difficulty is that this is a disclosure obligation that occurs at a particular point.

KIEFEL CJ:   Pre‑trial ‑ that is the point.  Of its nature, these provisions are going to be more difficult to apply with the dynamics of a trial when decisions are made and things are perceived about where the evidence is going.

MR HOWARD:   Yes.

KIEFEL CJ:   It is the common law that is more likely to be stepping into that breach, is I think the point you were trying to make earlier.

MR HOWARD:   We do say that, with respect.  One of the difficulties that one faces, as I keep saying, to take the force of what your Honours the Chief Justice and Justice Bell have put, is that it is difficult to apply it.  But if the test in Hughes is right, and we say with respect it must be because of the timing and the purpose of disclosure, it requires the relevant authorised officer to consider what could arise at trial and she may get that right or she may get that wrong and the consequences then are not visited on the accused if he has suffered a substantial miscarriage of justice, which is the objective nature.  This is not - there is not a reasonable defence for that purpose.  What we would also say in developing that is it cannot be what is admissible evidence that the Crown might call at trial.  That is not the test.

BELL J:   That might well be accepted but it is another thing altogether to consider that an objective assessment of issues that would or could arise at a trial includes the need to disclose material tending to undercut an expression of expert opinion on which the Crown does not rely and which forms no part of the brief.

MR HOWARD:   I accept the force of that, as we must, but is it an issue which could arise at trial?  We would maintain the submission that it is an issue which could arise at trial and there was then a disclosure obligation.  The disclosure obligation might not be limited to – we would say it is not limited, as a matter of construction, to the witnesses that the prosecution at that point in time intends to call. 

BELL J:   So the disclosure obligation would extend to the supply of statements from every police officer within the Western Australian Police who has ever expressed an opinion about yield results from cannabis, would extend to the supply of people within the forensic laboratories to which the investigating authorities have access on this issue.  It is a ‑ ‑ ‑

MR HOWARD:   Can I say – it has to be relevant of course and there will become a point where it is not sufficiently relevant under the statute.

BELL J:   But you cannot limit it to Detective Coen’s opinion.

MR HOWARD:   No.

BELL J:   It has to be – all that material would have to go in on the off‑chance that someone might make a forensic issue of whether or not this substantial quantity of cannabis had been procured from somewhere else or grown in the backyard. 

MR HOWARD:   I am not wanting to quibble with your Honour Justice Bell by saying that is sort of a “floodgates” argument, but the real difficulty that we have in terms of formulating is with the words of the statute – how is that limitation that one might think must be there, how is that limitation to be found?  Where is it to be discerned?

GORDON J:   It may do no more than, in effect, lead you to the conclusion that you put before that you have buckets of time under the Civil Procedure Act and the common law applies more generally. 

MR HOWARD:   Yes.  The decision in Vo, which I think our friends cite, his Honour Justice Hall does talk about what might be apparent – more consistently with what your Honour Justice Bell is putting – what is apparent to the prosecutor at the time, the objective – sorry, the objective relevant authorised officer – what is apparent to them at that point in time and if it is not apparent to them at that point in time – objectively apparent to them at that point in time then there is no breach of the statutory regime.  But if we are right then the common law may deal with it.  Is that a convenient time?

KIEFEL CJ:   Yes, thank you.  The Court will adjourn for 15 minutes.

AT 11.13 AM SHORT ADJOURNMENT 

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Howard.

MR HOWARD:   May it please the Court.  Can I return very briefly to one matter to do with the fresh evidence point and if I can - I will hand it up in a moment.  In the course of the cross‑examination of the detective in the Court of Appeal he was asked some questions by the appellant about the particular plants that were in the backyard which the detective had observed and it is a part of the evidence that is not reflected in the Court of Appeal judgment. 

I have copies of the transcript and I have given one to my learned friend.  We rely really only on one page that is not in the Court of Appeal judgment and I am very happy to hand up the whole of the transcript if that is of assistance and I am very happy to hand up one page.  I do not know ‑ my friend has not had much of an opportunity to tell me whether I ought to hand up all of it or just the one page. 

GORDON J:   I am sorry, Mr Howard, what is this directed at?

MR HOWARD:   It is one of the impacts - I dealt with the question of the cross‑examination that may have been available with the fresh evidence at the trial and it is one aspect of cross‑examination in the Court of Appeal that is not reflected in the Court of Appeal judgment.

KIEFEL CJ:   It is part of the transcript of the Court of Appeal, the cross‑examination that took place there. 

MR HOWARD:   It is, your Honour. 

GORDON J:   What fact does it establish?

MR HOWARD:   The detective is asked about the particular plants.  He says that they were quite small plants and he says in the Court of Appeal that the plants that size could not have yielded what was the amount of cannabis found and he was then asked about what the size of those plants might have been before they were harvested, to which the detective says, “I don’t know.  I’m just working off what I’m shown on the video.  I can’t tell you what size of the plant they were beforehand.”

KIEFEL CJ:   Does this advance your case substantially? 

MR HOWARD:   Well, not substantially, but it does show that the question of the yield and its relationship with the particular plants, that the detective was just giving the evidence off the video and the possibility that the plants were larger before they were harvested.  It goes no further than that.  As I said there are 100 or so pages of the transcript and it really appears at the top of one page.

NETTLE J:   Surely nothing could be better than “It is possible that the plant yielded more than 500 and I have done it myself in my own experiments”. 

MR HOWARD:   Well, I am content to leave it at that, may it please the Court.  To round out the submissions on the Criminal Procedure Act, there is a finding that the respondent makes much of, by the majority, about the trial prosecutor’s understanding and your Honours will find it in the appeal book at page 66 in paragraph 130 - I should really start at page 65 of the appeal book at the start of 130. 

So, his Honour Justice Buss is dealing with Ms White’s evidence on the appeal and the context is obviously important.  So, Ms White, as your Honours know was the trial prosecutor not the relevant authorised officer and the learned President says, in 130(a):

Ms White did not know the nature of the appellant’s defence . . . At that stage cannabis yield evidence did not appear to Ms White to be relevant. 

Then in (b) and (c):

Ms White did not realise until some stage on 25 November –

which is the – that is, I think the second day but it might be in fact that it was on the first day on the 24th when the email went late at night –

that cannabis yield evidence was relevant to the matters in issue at the trial.

I apologise, 25 November was the first day of trial, and the finding then in 130(c) is that at the end:

It was reasonable for her not to have had that understanding prior to the commencement of the trial.

What is said, as we apprehend it, is that, well, if it was reasonable for the trial prosecutor not to know or not to think that the yield evidence was relevant until that first day of the trial, then so much more so for the relevant authorised officer doing the exercise earlier. 

Now, what we say about that is that the inquiry – firstly, when one reads the findings in 130 that I have just taken the Court to, they must be findings to the effect of what the trial prosecutor thought the actual issues in the trial were going to be; what were the live issues in the trial.

We say that is a different question from the one that Hughes mandates, which is what are the issues that could arise at trial, and that the inquiry which the relevant authorised officer was to make was a broader inquiry done earlier and requires, in our submission, the sort of analysis that we postulated before the break, trying to work out what issues could arise, and that is a different question from, in the immediate lead‑up to the trial, what are the live issues that are actually going to be ventilated in this particular trial?

So we say the finding does not really take us anywhere in answering the question about the disclosure obligation under section 95(6) and we observe, for what it is worth, that of course 130(c) provides an answer to no statutory question.  There is no relevant question under the statute as to what the trial prosecutor thought or whether what she thought the issues in trial were going to be, whether her understanding was reasonable or not, and that it is a false equation to take that finding and put it back into the 95(6) context.

KIEFEL CJ:   Mr Howard, in your submissions and in the notice of appeal, the orders sought in the event that the appeal were to be allowed and the conviction set aside, a retrial is sought.  Justice Mitchell, on the other hand, considered that a judgment should be entered for the offence of simple possession.  Why would that not be the appropriate course?

MR HOWARD:   Certainly, this Court has power on the way we understand the operation of section 37, I think, of the Judiciary Act and the authorities have power to make a similar order.  It is not the order that is sought by the appellant.

KIEFEL CJ:   Justice Mitchell was trying to save your client the worry of a retrial.

MR HOWARD:   He was.

KIEFEL CJ:   Maybe you are not so concerned with it.

MR HOWARD:   It might be a matter for the appellant.  The instructions are that his preferred orders would be that.  But the question – I do not think it was your Honour the Chief Justice’s question - is is there power for the Court to make a similar order?  Then, on our understanding, it is.

KIEFEL CJ:   You are also seeking an order for costs, which is unusual.  What is the basis, really, for that?

MR HOWARD:   I do not have instructions to abandon that application, but I do not seek to address any submissions to it.

KIEFEL CJ:   Very well.

MR HOWARD:   Can I turn lastly then to those aspects of the common law obligation which I may not have fully covered.  I think that we have in our written submissions – and I have taken the Court to them or identified them – in paragraphs 66 and 67 as to the test.  If the Court were against the proposition that I have sought to advance about disclosure prior to the trial under the Criminal Procedure Act then the Court would have, I would imagine, little difficulty in disposing of that part of our common law disclosure argument. 

But that would then leave what we say would be irrefutable that once the detective gave his evidence as to yield then the common law obligation was engaged, it was material that was obviously within the possession of the police and readily available to the prosecution, albeit they did not know it. 

We have given your Honours the references to Mallard of course where those propositions are established and, I think, in Grey as well.  Of course, the police knew about the letter of comfort.  The prosecutor did not know.  Nonetheless, the court had no difficulty in saying the disclosure obligation had been engaged.

I have already touched on the point of no abrogation and identified within this Court’s authorities what we rely on.  I do not think I need to do anything further than that.  I think, subject to the Court’s views in the exchange with your Honour Justice Nettle on the miscarriage of justice, a substantial miscarriage of justice, we covered off those issues.  So I was not

proposing to go back to those matters, unless I could assist the Court further.

There is one thing I need to correct in the outline that was handed up to your Honours.  I had made an error in saying when the 42 days from committal had occurred.  The committal was on 24 April 2013, and that is apparent from the respondent’s further material at page 3, and 42 days from that would be 5 June 2013.  I had distracted myself when I looked at the respondent’s further material and got the wrong starting date and so there is a miscalculation in the outline.  I have just been handed a note, your Honour.  We do have instructions not to seek costs.  May it please the Court.

KIEFEL CJ:   Thank you.  Yes, Ms Forrester.

MS FORRESTER:   Thank you, your Honour.  As your Honours will immediately note from the respondent’s outline, we have reversed the order of the grounds in the way in which they are to be considered and that is a reflection of what the Court said in Grey about the fact that the test in relation to non‑disclosure is perhaps a lower bar than the fresh evidence one and, in the context of this sort of case, it is that again and we have made that point in our written submissions and the outline again.  So, unless your Honours wish me to address it in the order put by the appellant, if it pleases your Honours, I will start with ground 2.

KIEFEL CJ:   Yes.

MS FORRESTER:   The first thing perhaps that I would seek to address your Honours on is the statutory scheme and the way in which it is structured.  Your Honour Justice Bell at one point raised the matter that this scheme was designed to take the place, or to be a substitute after committals were abolished in Western Australia.  Committals were abolished in September 2002.  Section 611(b), which is part of the papers, was the precursor to the statutory scheme and was, as you will see in our outline, in effect, a stop‑gap disclosure provision that was designed to remedy the abolition of committals, along with section 104 of the Justices Act.  

When the statutory scheme which is now in place came into force on 2 May 2005 it came into force at the same time as the new Criminal Appeals Act which does deal with that issue about the consequences of non‑disclosure under section 30(c). 

The other matter that I particularly seek to address, arising out of my friend’s submissions, is that your Honour Justice Gordon was asking about the scheme and the way in which the guillotine comes down.  Section 42(6) is the continuing obligation of disclosure upon the original prosecutor being a person who commences the charge or has the conduct on their behalf.  Section 42(6) requires that if that person receives or obtains:

additional evidentiary material that is relevant to the charge –

they must serve it.  That obligation continues until the charge is finally dealt with.  So until the matter is concluded in the superior court.  That is the same obligation upon the prosecutor in the superior court under section 95(9).  So there is a continuing obligation at all times for additional material that comes into the possession of either the police or the prosecutor to disclose material to an accused person.  Part of the scheme that has not been raised is that section 96 imposes an obligation upon an accused to disclose in writing within a prescribed period before the trial date:

written notice of the factual elements of the offence that the accused may contend cannot be proved –

That is section 96(3)(c) at page 105 of the first joint book of authorities.  It cannot be the case that when this Court looks at an issue such as this that we look at it with 20/20 hindsight.  The rigours of the trial process must necessarily come into play and, at the time of the trial - and the trial transcript bears this out – it was only extremely late that it became apparent to everybody that the issue of possession was not in issue at the trial, and it is said at the outset by the defence counsel then acting for the appellant that – this is at page 216 of the trial transcript  “Your Honour, as you’re most likely aware, there’s been a change in Mr Rodi’s position and that he through counsel is going to make an admission in relation to the possession of the cannabis”.  Then he goes to talk about:  “As a result of that a number of evidentiary” – and this is obviously all happening on the fly – “issues that we’ve already discussed come back into play”.

So that is the context in which this trial had its genesis, and I know that on the face of the record this trial looks like it did not proceed in an orderly fashion in that sense, but the appellant was unrepresented for some time until shortly prior to the trial and that also is a factor that led to the way in which this trial proceeded.  I do not seek to sheet blame home to anybody, but the rigours of the trial process cannot be eliminated in the course of this consideration.

MS FORRESTER:   Yes, your Honour; I accept that.  Indeed, that has always been the State’s ‑ ‑ ‑

NETTLE J:   Equally so in relation to the common law obligation of disclosure.

MS FORRESTER:   Well, then I will stop talking about that particular matter, your Honours.  The appeal perhaps from that point then can probably be easily disposed of, except to make it clear from the respondent’s point of view that there is no concession whatsoever that the breach of the obligations under 95 has been made out or could be made out

in the context of this case.  Equally, in our submission, there could be no finding that the common law – that there has been a breach of an obligation which the respondent claims does not exist in our jurisdiction.

KIEFEL CJ:   What do you say about the orders that are sought?

MS FORRESTER:   Your Honours, the argument that I have been making in relation to the proviso, whether or not that has met favour, indicates that if your Honours ‑ ‑ ‑

KIEFEL CJ:   I understand that the respondent seeks remitter on that question, but if the Court were against you on that ‑ ‑ ‑

MS FORRESTER:   Yes, we do not seek that your Honours substitute a verdict of simple possession because the point that the respondent makes is that the appellant could always and should always have been convicted of the substantive offence.  In those circumstances, the appropriate remedy is a remittal for a retrial.  What happens then is obviously a matter of prosecutorial discretion thereafter.  May it please, your Honours.

KIEFEL CJ:   Thank you.  Do you have anything in reply, Mr Howard?

MR HOWARD:   Ms Joseph will reply, may it please the Court.

KIEFEL CJ:   Ms Joseph.

MS JOSEPH:   May it please the Court.  We understand the respondent to be conceding breach of section 42(6) of the Criminal Procedure Act on the basis in response to your Honour Justice Bell’s question that Detective Coen had not disclosed the prior Coen evidence.  However, on our reading of that obligation in section 42(6) it falls on the prosecutor and it only applies to material that the prosecutor receives or obtains and in this case we know from the respondent’s further material that the prosecutor, for the purposes of section 42, was actually Detective Davey and not Detective Coen. 

The fact that it also applies to the material that the prosecutor, so Detective Davey, receives or obtains, means that it does not extend to material that is in the possession of the organisation or person who investigated the offence such that it could possibly capture Detective Coen.  This is a point that was made by ‑ ‑ ‑

KIEFEL CJ:   But it would at a minimum refer to the evidence that Detective Coen was about to give which had been discussed with the prosecutor on the morning that he gave evidence.

MS JOSEPH:   It is a different prosecutor, your Honour, in 42 compared to 95(9), so Detective Davey ‑ ‑ ‑

BELL J:   Effectively the prosecutor in 42 is usually the police informant.  Is that right?

MS JOSEPH:   It is usually the police prosecutor and that is something that Hughes addressed.

GORDON J:   Is that picked up by the definition of “prosecutor” in section 3?

MS JOSEPH:   The identity of the prosecutor for the purposes of section 42, being the officer who signed the prosecution notice, is something that was addressed in the case of Zanon, your Honour, which is not in our joint book of materials.  That is a case that considered the different buckets and different obligations under the Criminal Procedure Act in relation to section 42, section 95 and who needs to comply with those obligations.

I do not understand it to be controversial that in this case for the purposes of section 42 the obligation was being discharged by Detective Davey and that is by reference to the respondent’s book of materials at page 5, being the individual who signed the prosecution notice.

In those circumstances, if we look at the decision of Justice Hall in Vo, which is at tab 21 at the joint book of materials at page 839, Justice Hall, with whom Justices Pullin and Buss agreed, considers the way in which the words “receives or obtains” in section 95(9), which picks up the same wording that we see in 42(6) in respect of a continuing obligation, actually constitutes a limitation upon that continuing disclosure obligation.

KIEFEL CJ:   Which paragraph are you referring to?

MS JOSEPH:   That is paragraph 37, your Honour, on page 839.  In this regard it needs to be in the actual possession of the person who qualifies as a prosecutor at the relevant stage of the proceedings and it being in the possession of Detective Coen would not satisfy that obligation to be in the actual possession of Detective Davey who was the prosecutor for that purpose.

NETTLE J:   Can I ask why you are arguing this given there is a Crown concession if 42(6) was breached?

MS JOSEPH:   If we are wrong about it, we are more than comfortable with that outcome, your Honour.

NETTLE J:   Just for our benefit, as it were, that you are bringing these things to our attention.

MS JOSEPH:   Correct, your Honour.  We consider that it is worth raising – the words of the statute do not marry up with this idea that Detective Coen would be subject to that obligation.  Your Honour Justice Gordon asked me a question in response to which I referred to Zanon. The reference for that is (2016) 50 WAR 1, to the extent that that assists. If there is nothing I can assist with further, those are our submissions.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 12.19 PM THE MATTER WAS ADJOURNED