The State of Western Australia v Edwards
[2019] WASC 199
•12 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2019] WASC 199
CORAM: HALL J
HEARD: 6 JUNE 2019
DELIVERED : 6 JUNE 2019
PUBLISHED : 12 JUNE 2019
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law - Application to adjourn trial - Prosecution disclosure - Need to ensure a fair trial
Legislation:
Nil
Result:
Application granted
Representation:
Counsel:
| Prosecution | : | Ms C Barbagallo SC & Mr B Hollingsworth |
| Accused | : | Mr P Yovich SC & Ms G Cleary |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Mony De Kerloy |
Case(s) referred to in decision(s):
Nil
HALL J:
(This judgment was delivered extemporaneously on 6 June 2019 and has been edited from the transcript.)
The trial of this matter is set down for nine months, commencing on 22 July 2019. At the last directions hearing, counsel for the accused raised concerns regarding continuing disclosure of evidence by the prosecution. It was said that an adjournment was probable if, as seemed likely, prosecution disclosure remained incomplete until shortly before the time the trial was due to commence.
Following that hearing, I made an order requiring the State to file and serve a schedule setting out all outstanding disclosure, with the estimated dates when each element of that disclosure material was expected to be filed and served. Such a schedule was filed and the dates for disclosure of material extended through to 19 July 2019. In light of this, the defence filed an application to adjourn the trial to a date in November.
History of the matter
Before turning to the merits of the application, it is important to set out a short history of this matter.
The accused is charged on an indictment containing eight counts, including three counts of wilful murder. The offences are alleged to have occurred on various dates between 15 February 1988 and on or about 15 March 1997.
The accused was arrested and charged on 22 December 2016. He appeared in the Magistrates Court for the first time the following day. He was committed for trial to this court on 25 July 2018.
Prior to his first appearance in this court, and at the request of the State, the court held trial dates for six months, commencing 1 May 2019. This involved ensuring that a judge and a courtroom were reserved for that period of time.
On 14 September 2018, the State filed the indictment and prosecution brief. The accused first appeared in this court on 17 September 2018. On 28 September 2018, he was arraigned on the indictment and entered pleas of not guilty to the charges.
Since that time, there have been a number of hearings at which pre‑trial issues have been dealt with and rulings made. The first such hearing before me was held on 12 November 2018. It is fair to note that the defence raised concerns at that time as to whether the trial could start in May as planned. The reasons for that were the time needed for the defence to prepare for trial and the uncertainties as to the disclosure of further material by the State.
At the next hearing, on 18 December 2018, it was clear that a May start date was not feasible. The principal reason for that was that the State was at that stage anticipating that disclosure of prosecution expert reports would not be completed until some time in March, and possibly later. That would not allow sufficient time for defence experts to review the material and provide their own reports and the prosecution experts to then provide any response. Accordingly, I ordered that the trial would be listed to commence on 22 July 2019, for nine months.
At subsequent hearings in February and March, I reviewed progress on prosecution disclosure. The dates for some reports were amended; but, generally, the matter remained on track for a July start. However, that position became much less clear on 24 April 2019. On that date, it became apparent that the State was investigating a new area in relation to fibres, which would require additional expert evidence. The date on which it was expected that these reports would be completed was mid‑to‑late June.
There were also some other areas of outstanding disclosure where the State was unable to give estimates as to the time the evidence would be available to be served. Senior counsel for the State expressed the difficulty that at least some of these witnesses were people over whom she had no control. The implication was that the State was unable to set a date for completion of this material. I, nevertheless, asked that the witnesses concerned be asked to provide dates for likely completion and be told that those dates would be given to the court.
As mentioned earlier, I made an order requiring the State to file a schedule setting out the dates on which all remaining items of disclosure would be filed and served. That schedule refers to 39 items of outstanding disclosure, divided into five subject areas: fibre evidence, PathWest evidence, other forensic evidence, taxi evidence and other general evidence.
In respect of fibre evidence, this includes the new inquiries. The dates given for items under that heading are between 31 May 2019 and approximately 19 July 2019. The dates given for the items under the PathWest heading are between 31 May and 17 June 2019. The dates given under the other forensic evidence heading are between 17 May and 21 June 2019. The dates given under the taxi evidence heading are between 10 May and 31 May 2019. The dates given under the other general evidence heading are between 17 May and 28 June 2019. Some of that material has subsequently been disclosed, and there have been some amendments to disclosure dates for other items, which have been provided today.
The application
The most significant outstanding disclosure relates to fibre evidence and DNA evidence. In respect of the former, disclosure is not anticipated to be complete until 19 July 2019, and even that date is expressed in aspirational terms. In respect of the DNA evidence, disclosure will not be complete until 21 June 2019. Both of these are areas where the defence indicated an intention to brief their own experts long ago. The defence experts cannot be expected to complete their own reports until disclosure by the prosecution is complete, and they have had time to consider the reports of the prosecution experts.
Counsel for the accused submits that before the trial commences prosecution disclosure should be practically complete. There should also be adequate opportunity for the accused to prepare a defence to the prosecution case, including obtaining reports from other experts. None of this is said to be possible based on the current estimates of disclosure given by the State.
Should an adjournment be granted
Adjournment of any trial is a matter of significance. Adjournments cannot be granted unless there is a proper justification. There are several reasons for this.
Firstly, an accused is entitled to have the charges against him dealt with as expeditiously as possible. That is particularly important where the accused has been remanded in custody awaiting trial. I note that the accused here has been in custody for 2.5 years. That is significantly longer than usual. It has been well said that justice delayed is justice denied. Sometimes delay is justifiable, but prolonged delay will amount to injustice.
Secondly, the surviving alleged victims and the families of alleged victims are entitled to expect that the proceedings will be resolved as quickly as possible. Criminal trials inevitably are traumatic for such people, and delays can compound and exacerbate that trauma. It may be difficult to undertake any other activities in life whilst the charges remain unresolved and the outcome is unknown.
Thirdly, witnesses can also be prejudiced by delays. A further lapse of time may affect the ability of witnesses to remember the relevant events. There is also potential inconvenience to witnesses who may have been served with a witness summons and are required to make themselves available to give evidence in court.
Fourthly, there is a public interest in the efficient conduct of criminal proceedings. Serious criminal charges are brought in the name of the State for very good reason. Alleged offences are a legitimate matter of concern for all citizens. Furthermore, public confidence in the criminal justice system depends on the courts being able to resolve charges efficiently and fairly.
Fifthly, efficient management of the courts depends on matters proceeding when they are listed. Every time a trial is adjourned and re‑listed, other trials are affected. Other accused persons, alleged victims and witnesses may lose opportunities to have their matters dealt with, and those matters will likely be of great importance to them. It must be emphasised that the court does not have unlimited resources. Courtrooms and judges are in limited supply, and there are pressing competing demands for these resources. This is particularly so in respect of a long and complex trial. It cannot be simply assumed that a judge and suitable courtroom will be available at any time. Shifting a long trial significantly impacts the management of the resources of the court.
There is, however, another important consideration to take into account in deciding whether an adjournment should be granted. An adjournment should be granted if to proceed on the set day would result in a trial that was unfair. It is a cardinal principle of the criminal justice system that trials should be fair to the parties ‑ that is, both the prosecution and the accused, and should be seen to be so. An essential feature of a fair trial is that an accused person should be fully informed of the evidence to be brought against him and have a reasonable opportunity to prepare his defence, including gathering any evidence he may wish to call at the trial.
In this case, the accused brings the application, and the State does not oppose it. It is accepted that fairness requires that the start of the trial be deferred to allow the prosecution to disclose the evidence it relies on and for the accused to properly consider that evidence, instruct his lawyers and obtain expert evidence of his own. The agreement of the parties does not mean that the adjournment must be granted. That remains a decision for the trial judge weighing all of the considerations I have referred to.
I have come to the conclusion that an adjournment must be granted because to proceed on 22 July 2019 would mean that the trial would be unfair. That consideration must outweigh other matters I have referred to, as important as they are. It would not be in anyone's interest, least of all the public interest, for a trial to take place which would be unfair. That is not to say that an adjournment is a satisfactory outcome; it is not. The consequences for the accused, victims and their families, witnesses, and the public are extremely unfortunate and regrettable.
In granting this application, it is important to say something about the process of disclosure because what has happened here should not be thought to be usual or appropriate. In an ideal world, all investigations would be complete prior to a person being charged. Often, however, there is a need for statements to be finalised and reports obtained after charges are laid. This is allowed for in the Criminal Procedure Act 2004 (WA) by setting down a timetable for disclosure.
What should happen is that, a considerable time prior to trial, the prosecution evidence should have been completely disclosed so that the accused knows the case against him. What should not happen is that new lines of inquiry are pursued and disclosure is continued up to the trial. Sometimes, further late disclosure is unavoidable because witnesses reveal something additional or new evidence comes to light unexpectedly. But, this should be the exception; not the rule.
As to whether the court must make allowances for witnesses, it is important for witnesses to understand that, once court proceedings are underway, the convenience of witnesses is not the only consideration that must be taken into account. Witnesses, even professional expert witnesses, should not be permitted to believe that the court can necessarily accommodate their priorities or desired work program. Those witnesses must understand that, since the charges have been laid and there has already been substantial delay, any further delay will produce injustice. It is imperative, therefore, that all such witnesses are informed that time is of the essence and that outstanding work must be given the highest priority that is possible. This applies to both prosecution and defence witnesses.
Having made a decision to lay charges, the prosecution has an obligation to ensure that the accused is brought to trial as expeditiously as possible. That obligation means that the prosecution does not have an unqualified right to pursue every further line of inquiry that it may wish to pursue. As the prosecution has acknowledged, a line must be drawn.
Given that these charges have now been pending for two and a half years, I intend to draw that line by making an order that all prosecution disclosure is to be complete by a set date, save only information arising from the proofing of existing witnesses. After that date, no new evidence will be permitted to be adduced at the trial, unless application is made to the court for leave to do so.
Conclusion
For those reasons I intend to order that the trial will be adjourned. The trial dates commencing 22 July 2019 will be vacated and a new trial date of nine months commencing on 18 November 2019 will be set.
There will be an order that prosecution disclosure is to be complete, with the exception I have referred to, by 30 July 2019. The exact terms of those orders will be put into writing and provided to the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall12 JUNE 2019
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