The State of Western Australia v Edwards [No 3]
[2019] WASC 405
•8 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [No 3] [2019] WASC 405
CORAM: HALL J
HEARD: 21 & 22 OCTOBER 2019
DELIVERED : 8 NOVEMBER 2019
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law - Prosecution disclosure - Order that prosecution not be permitted to adduce evidence not disclosed by set date without leave of the court - Applications by prosecution for leave to adduce new evidence - Whether granting applications consistent with a fair trial
Legislation:
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA) s 50B
Result:
Applications granted
Category: B
Representation:
Counsel:
| Prosecution | : | Ms C Barbagallo SC, Ms T Payne & 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):
The State of Western Australia v Edwards [2019] WASC 199
HALL J:
Summary
On 6 June 2019 I made an order that all disclosure by the State was to be complete by 30 July 2019. That order provided that if the State wished to adduce any evidence that was disclosed after 30 July 2019 it would need to first obtain leave of the court to do so. There was an exception to this requirement in relation to information provided by witnesses in the course of proofing.
On 2 October 2019 the State filed applications in accordance with the order seeking leave to adduce evidence that had been disclosed since 30 July 2019. For reasons that I will shortly explain, there was some uncertainty about the terms of the order. Accordingly, the State filed applications divided into two groups. Group A relates to material that clearly fell within the terms of the order. Group B relates to material that the State was uncertain fell within the terms of the order, but for which it filed applications out of an abundance of caution.
The defence opposes some of the applications but not others. In respect of some of the evidence relating to expert witnesses the defence sought a variation of its disclosure obligation as an effective remedy for the prejudice suffered by the late disclosure of the State's evidence in this regard. As to the applications opposed by the defence, the grounds for that opposition are that it is asserted that to allow the evidence to be adduced would compromise the fair trial of the accused in circumstances where the trial has already been delayed and the accused does not seek an adjournment or want further delay.
For the reasons that follow I am satisfied that the applications should be allowed and the State should be granted leave to adduce the evidence to which they relate. In coming to that conclusion I have taken into account the nature of the evidence, the degree of any prejudice to the accused and the extent to which any such prejudice can be alleviated by other means. In particular, an order was made at the hearing of the applications for the defence expert evidence disclosure requirement in regard to DNA and fibre evidence to be varied. The defence does not have to disclose these expert reports until 6 December 2019. I have also taken into account that, for reasons independent of these applications, a decision has been made to defer the start of the trial by one week.
The applications
On 6 June 2019 I made an order adjourning the trial, which at that time was set down for nine months commencing on 22 July 2019. The reasons for that adjournment are explained in my judgment of that date.[1] In summary, it had become apparent that the prosecution would not complete disclosure prior to the trial. In particular, the State was pursuing a new line of investigation in relation to fibres, which would produce additional evidence, including expert evidence.
[1] The State of Western Australia v Edwards [2019] WASC 199.
In granting the adjournment I noted that it is a cardinal principle of the criminal justice system that trials should be fair to the parties 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. I referred to the fact that one of the aspects of fairness is that a person who is charged should be brought to trial within a reasonable time. That means that the prosecution does not have an unqualified right to pursue every further line of enquiry that it may wish to pursue. Bearing these considerations in mind I made an order that all prosecution disclosure was to be complete by 30 July 2019, save only for information arising from the proofing of existing witnesses. No new evidence obtained after that date would be permitted to be adduced at the trial unless an application was first made to the court for leave to do so. The order made was in the following terms:
All disclosure by the State to be complete by 30 July 2019. The State may not adduce any new evidence obtained after that date at trial unless an application for leave is made, with the exception of any additional information provided during proofing of witnesses. For the avoidance of doubt, additional statements or proofing notes resulting from the proofing of witnesses would fall within this exception, whereas material that results from additional inquiries made as a result of said proofing would not fall within this exception.
The exception was intended to allow for the possibility that witnesses in proofing would disclose further details or corrections about matters already covered in their existing statements. Any such information would be disclosed in the normal course and could be adduced in evidence without the need to seek leave to do so. The purpose of the order as a whole was to ensure that any evidence that was entirely new, that is not previously covered in any witness statement, would be the subject of an application.
At a further directions hearing on 9 August 2019 the order was the subject of further discussion.[2] By that time the defence had been provided with a number of proofing notes and additional statements taken from witnesses who had been proofed. Defence counsel raised a concern that some of this material referred to entirely new issues that had not previously been the subject of any reference in the witnesses' prior statements. In particular there was a concern that some witnesses were being asked new questions or were being asked to comment on material that they had not previously seen. The question was raised as to whether this fell within the terms of the exception. I stated that if there was an issue as to what the order meant then I would clarify it. I stated that the purpose of the order was to ensure that the State was not limited in proofing witnesses and it was possible that witnesses may sometimes provide further details or corrections to their existing statements. However if there was something that was a matter not previously the subject of evidence then the intention was that that would be the subject of an application. I noted that whilst it was appropriate that any such material should be disclosed to the defence promptly, it was also important that there be an application brought as soon as possible so as to ensure that there was clarity as to what evidence could be adduced at the trial.
[2] ts 646 - 651.
As I pointed out at the hearing of the present applications, ultimately the relevant question is whether, if the new evidence is relied upon, the trial will be a fair one. That question does not depend upon the terms of the order. Irrespective of the existence of the order, the trial could not proceed on the set date if to do so would be unfair. However any assessment of fairness needs to take into account the nature and significance of the evidence, any prejudice to the defence, how such prejudice may be reduced and that the prosecution should ordinarily be permitted to rely on all evidence that has probative value.
As noted earlier in these reasons, on 2 October 2019 the State filed applications for leave to adduce new evidence. The applications were broken down into two groups: Group A being material that clearly fell within the terms of the order and Group B being material that arguably fell within the terms of the order. I will adopt those groupings in dealing with the evidence. Group A includes evidence from 13 witnesses. Group B includes evidence from 41 witnesses. Some of the witnesses are included in both groups because they provided some information which was clearly new evidence and some which was only arguably so.
At the hearing of the applications the accused entered pleas of guilty to the first five counts in the indictment. One of the effects of this was to reduce the need for the prosecution to rely on some of the witnesses who it had intended to call. This included four of the witnesses in Group A and 13 of the witnesses in Group B.
Group A witnesses
Ian Landreth Berry and Robert Paul Linsley
These two police witnesses have given short statements that relate to matters referred to by the accused's first wife, EB. In the course of proofing, EB revealed further details regarding her separation from the accused. This included reference to an occasion when she was staying with her parents and was visited by the accused. She said that he invited her to a fireworks display and she declined. This evidence has some potential significance to the timing of the first murder charge relating to Sarah Spiers, count 6 on the indictment.
Detectives Berry and Linsley have searched public records as to the occurrence of fireworks displays in the Mandurah and Rockingham areas in late 1995 and early 1996. Detective Linsley also gives evidence regarding the screening date of a particular television program referred to by EB.
Whilst strictly speaking these statements are new evidence, they arise from details provided by EB in relation to a subject referred to in her existing statement. They are short statements, five pages and three pages respectively (Detective Linsley has given two statements, each of three pages), and cover very discrete and confined issues. I also take into account that the statements were disclosed to the defence on 7 August and 29 August 2019 respectively. The defence would suffer no prejudice if this evidence was adduced at the trial. Leave to adduce this evidence should be granted.
Wendi Rundle
Ms Rundle works for Alinta Energy. She is able to produce records for two houses lived in by CH, a woman with whom the accused had a friendship. The significance of these records is that it enables a date to be placed on CH's occupancy of the two residences. To some extent the significance of this evidence is that it relates to evidence as to the accused's state of mind, an issue dealt with in a separate ruling (on the 'emotional upset' evidence). For present purposes it will be assumed that that other evidence is admissible.
Ms Rundle's statement is four pages in length, was disclosed on 29 August 2019 and relates to a very discrete issue. In essence, it clarifies information referred to in CH's statement. The defence would suffer no prejudice if this evidence was adduced at the trial. Leave to adduce this evidence should be granted.
Michelle Aikin
Ms Aikin is employed by the Department of Transport. She has provided a certificate relating to a taxi which is believed to have transported Jane Rimmer from Nedlands to Cottesloe on the evening of 8 June 1996. The certificate is relevant to confirm the make and model of the taxi and to exclude it as being the source of fibres found in Ms Rimmer's hair.
This evidence consists of a single page and relates to a discrete issue. In essence its significance is to exclude an alternative source of fibres. The defence would suffer no prejudice if this evidence was adduced at the trial. Leave to adduce the evidence should be granted.
Scott Elliott Egan
Mr Egan is a forensic scientist who works at PathWest. He has given an additional statement setting out the laboratory practices at PathWest regarding the receipt, storage and movement of exhibits and regarding DNA extraction and the storage of extracts. He also produces and annexes timelines in respect of the storage of exhibits relating to his matter at the PathWest laboratory.
To a significant extent the matters covered in Mr Egan's additional statement relate to the practice and procedure of PathWest. The State prepared certificates under s 50B of the Evidence Act 1906 (WA) and served those on the defence. Such certificates are evidence as to when things were received, examined, a DNA profile obtained and that a forensic scientist examined the records and confirms that all quality assurance procedures for the receipt, storage and examination of the things were complied with.
If a party intends to dispute a matter stated in a s 50B certificate the party must give the prosecution and the officer who produced the certificate written notice of the matter to be disputed at least five days before the hearing date. The defence in this case gave notice on 7 October 2019 in written submissions. Arguably, notice was provided earlier, though that is disputed. In the absence of such notice the prosecution is entitled to assume that a certificate will be sufficient proof of the matters stated in it. In any event, the prosecution obtained an additional statement from Mr Egan and disclosed it on 2 August 2019.
The material contained in this statement, whilst arguably new, is necessary because the defence has indicated an intention to challenge the matters referred to in the 50B certificates. It should be noted that the PathWest files have been previously disclosed to the defence. Furthermore, in written submissions the defence states that it does not oppose the application in regard to this evidence, rather it seeks an order varying or dispensing with the disclosure requirement regarding defence expert evidence.
Mr Egan's evidence goes to the issue of the reliability of DNA evidence. The defence is entitled to consult experts and obtain evidence of their own on that issue. To the extent the defence is prejudiced by the late disclosure of Mr Egan's additional statement, that prejudice is removed by the order varying the date for defence disclosure of DNA evidence to 6 December 2019. Accordingly, leave should be granted in respect of Mr Egan's additional evidence.
Ronulfo Divinagracia
Mr Divinagracia was employed at Australian Textile Mills Pty Ltd, which produced the uniforms worn by Telstra technicians in the mid-1990s. He is a laboratory technician who tested a sample of the fabric used in those uniforms. This evidence is relevant to blue fibres found on three of the victims, which are alleged to be consistent with the material used in Telstra uniforms issued to the accused.
This is evidence that was referred to at the time of the adjournment application. Although the statement is relatively short it is of some significance. The potential prejudice to the defence is in the ability to consult with and obtain evidence from their own fibre expert. That prejudice is removed by altering the disclosure date of defence fibre expert reports to 6 December 2019. The defence does not oppose the application in these circumstances and it should be granted.
Kathy Costas
Ms Costas is a senior garment technician employed by the Workwear Group (previously 'Yakka'). She provides a 'detail card' which is relevant to trousers produced for Telstra in the 1990s. The detail card contains information and specifications with respect to that garment.
This statement is relatively brief and relates to the fibre evidence. As with Mr Divinagracia, any prejudice to the defence is substantially avoided by changing the disclosure date for defence expert reports. In these circumstances the defence does not oppose the application and it should be granted.
Dr Jonathan Whitaker
Dr Whitaker is a forensic scientist employed by Principal Forensic Services (PFS) in the United Kingdom. He has provided a 38 page report of which only pages 32 to 35 are said to be new (the balance of the report is dealt with in Group B). Those pages relate to the possible mechanism by which DNA of another person could have come to be under the fingernails of Ciara Glennon. He considers the relative possibility that such DNA could have come to be under the fingernails as a result of passive social contact as opposed to scratching. The report is dated 26 September 2019 and was disclosed on 27 September 2019.
At the hearing of the application senior counsel for the State said that the prosecution only intended to adduce this evidence in rebuttal in the event that the defence sought to raise as a possibility that the DNA could have originated from some social contact. If no such contention is advanced the State will not seek to adduce this evidence.
In these circumstances it is difficult to see how any prejudice to the defence arises. The defence has the benefit of knowing how the witness would respond if a suggestion is made that social contact was a possible innocent explanation for the DNA. It also has the advantage of being able to consult with its own expert in regard to this possibility prior to Dr Whitaker being called. As noted earlier, the requirement for defence disclosure of expert reports, including any DNA reports that the defence wishes to rely on, has been varied to 6 December 2019. Accordingly, the application should, to the limited extent sought, be granted.
Peter Collins
Mr Collins is a forensic scientist with the ChemCentre. He has given four previous statements. His additional statement refers to examinations conducted on the shorts of KJG, the victim of the offences that are the subject of counts 3, 4 and 5 on the indictment. He has previously compared fibres found on the shorts with Telstra issued clothing. In the present statement he refers to some testing done on tape-lifts that appear to have been taken closer in time to the incident. He annexes documents relating to the examination of those fibres. Although the accused has pleaded guilty to counts 3, 4 and 5, the evidence of Mr Collins remains relevant because it will be alleged by the prosecution that fibres founded on KJG's shorts are consistent with fibres found on the bodies of Ms Rimmer and Ms Glennon.
This evidence is significant, but any prejudice to the defence is sufficiently removed by the change to the defence expert fibre evidence disclosure date to 6 December 2019. That change will provide the defence with adequate opportunity to consult with its own fibre expert before Mr Collins is called and before having to disclose any report from that expert. In these circumstances leave to adduce this evidence should be granted.
Group B witnesses
Wayne Wookey
Mr Wookey was a security guard at the Hollywood Hospital in 1995. He has previously given a statement in which he referred to observations he made at the time of the Hollywood Hospital incident. In proofing he clarified some points and was shown an aerial photograph of the Hollywood Hospital on which he has marked relevant locations in respect of that incident.
This evidence merely provides clarification of matters already referred to in the witness' statement. The aerial photograph simply provides in pictorial form a depiction of what he has previously stated. This evidence falls within the proofing exception and leave is not required.
Judith Borrett
Ms Borrett is a witness who has previously given a statement in regard to screams that she heard in the Mosman Park area at around the time of the disappearance of Ms Spiers. In proofing she was shown a map of the Mosman Park area on which she was able to identify where she was at the relevant time. She also produced a drawing of the layout of her home. She provides some additional information as to how she is able to place the incident at a particular date and time.
The additional information merely provides clarification in regard to issues that are already covered in the existing statement of the witness. This information falls within the proofing exception and leave is not required.
Iosif Patrascu
Mr Patrascu is a taxi driver who can give evidence relevant to the disappearance of Ms Rimmer. He has previously given a statement. During proofing he was shown a map on which he marked the location of the taxi rank near the Continental Hotel in Claremont and a document with taxi dispatch records. He marked the map as to where he picked up Ms Rimmer and also confirms that the taxi he drove was a white Ford Falcon station wagon.
This information merely provides clarification of issues already referred to in an existing statement. It falls within the proofing exception and leave is not required.
Matthew Klopper, Sian Chapman, Benjamin Rundell, Lynda Donovan, Christine Meade, Brandon Gray and Troy Bond
These witnesses give evidence relevant to counts 7 and 8. Each of them has previously given a statement. During proofing each of them was shown still images taken from CCTV footage in the Claremont area at the relevant times. They were able to identify themselves as a result.
Whilst the CCTV footage has not previously been referred to in these witnesses' statements, they have referred to their movements on the relevant nights. Accordingly this information merely adds to existing evidence. To the extent that it is new there is no prejudice to the defence and there is ample time prior to the commencement of the trial for this evidence to be taken into account. Leave to adduce this evidence should be granted.
Tiffany Hughes
Ms Hughes has previously given two statements regarding the finding of Ms Rimmer's watch. In proofing she was shown an aerial photograph and produced a drawing depicting the relevant location.
This additional information merely clarifies an existing statement. It falls within the proofing exception and leave is not required to adduce it.
Lynda Eldridge
Ms Eldridge was a Telstra employee for many years. She has previously provided a statement annexing a summary of vehicles allocated to the accused. The additional statement annexes a new screenshot of computer information, however the records which underpin this information were all disclosed in the witness' first statement. She also annexes other documents, some of which appear to be new and which provide further detail as to the relevant vehicles. She explains the meaning of the documents.
This information merely provides existing information in a new form or clarifies that information. It falls within the proofing exception and leave is not required.
CH
CH dated the accused in 1996. In proofing she has recalled an additional piece of information. It relates to occasions when she and the accused went to what is described as a 'heritage looking pub' in Claremont. There is also additional information regarding conversations that the witness had with the accused about her safety in the wake of women going missing in the Claremont area. There is further additional information regarding where the witness was living when she was seeing the accused. The statement otherwise merely clarifies or provides further detail as to matters covered in an earlier statement.
Some of this information is new. However, it is in relatively small compass and there is no prejudice to the accused given the length of time before the trial starts. The application should be granted.
Martin Blooms
Mr Blooms is a retired forensic scientist from PathWest. He has previously provided witness statements. Additional information is now provided in which he gives an opinion about the relevance of a higher proportion of complete sperm cells compared with sperm heads only in smears taken from the samples relevant to counts 3 to 5.
Given that the accused has pleaded guilty to counts 3 to 5 it is likely that this evidence will not be relied on. However, that may depend on what facts are admitted by the accused in relation to those counts. Insofar as there may be a need to rely on this evidence, it is in relatively small compass and any prejudice to the accused is removed by the length of time prior to the trial start date. The application should be granted.
Mark Harbridge
Sergeant Harbridge is a police officer who attended the Wellard crime scene, that is the location where Ms Rimmer's body was found. He has provided additional information regarding his role and confirming that he did not touch the deceased at any time. He also deals with the continuity of exhibits from the post-mortem examination.
To the extent that this information is new it is in relatively small compass and deals with issues relating to processes rather than revealing any significant new evidence. Any prejudice to the accused is sufficiently removed by the length of time prior to the trial start date. The application should be granted.
Gary Hyde
Sergeant Hyde is a police officer who attended the Eglington crime scene, that is where the body of Ms Glennon was located. He has provided additional information confirming that he does not recall touching the deceased, and in regard to procedures relating to the conveyance of exhibits from the crime scene and continuity of a sample of hair mass.
To the extent that this information is new it is in relatively small compass and deals with issues relating to processes rather than revealing any significant new evidence. Any prejudice to the defence is sufficiently removed by the length of time prior to the trial start date. The application should be granted.
Andrea Lea
Ms Lea is a forensic scientist at Forensic Science Service (FSS), a forensic laboratory in the United Kingdom to which DNA samples were sent for testing. She has previously provided a statement. She has provided additional information regarding the packing of exhibits received by FSS, an annexure referred to but inadvertently omitted from a previous statement (and which itself had previously been disclosed) as to her handling of exhibits in tamper evidence bags and the interpretation of notations from movement records.
Whilst some of this information is new it relates to records which have been previously disclosed and to forensic examinations of which the defence is already aware. The significance of this evidence is in establishing the continuity of forensic samples and in excluding the possibility of error or contamination. The defence does not oppose the granting of leave in respect of this evidence, rather it seeks an order allowing the opportunity to obtain and adduce its own expert evidence notwithstanding the defence disclosure obligations in the Criminal Procedure Act 2004 (WA). This concern has been met by the making of an order that the defence file and serve any expert DNA reports by 6 December 2019. Accordingly, the application to adduce this evidence should be granted.
Susan Vintiner
Ms Vintiner is a forensic scientist with the Institute of Environmental Science and Research (ESR) in New Zealand. She provides additional information in which she confirms that she received samples from Dr Whitaker for analysis, reviews and agrees with Dr Whitaker's profiling results and conclusions, comments on the soundness of assumptions made in the interpretation of low count number DNA results by Dr Whitaker, compares the likelihood ratios given by the New Zealand and Australian database, provides a summary of the salient features of the SPURS software used in the analysis, and comments as to the limited extent on the use of the PP21 database worldwide and in New Zealand.
Dr Vintiner's evidence in this regard has, in substance, been the subject of previous statements. This statement provides clarity and much greater detail. It is arguable that it contains some new information. However, any prejudice to the defence is sufficiently removed by allowing the defence until 6 December 2019 to provide defence expert DNA reports. It is also relevant to take into account that the evidence of Ms Vintiner and Dr Whitaker is evidence of significant probative value and to exclude this evidence would operate unfairly to the prosecution. To the extent that leave is required it should be granted.
Robert MacDermid
Mr MacDermid is a retired mortuary manager. He has given two previous statements. He has provided additional information in regard to procedures with respect to instruments used during post-mortem examinations, movement of a body and the meaning of entries made in the records. This is relevant to the possibility of contamination.
To the extent that this is new information it is in relatively small compass. In any event the defence does not oppose the application regarding this witness, subject to a variance of the time for defence disclosure of expert DNA evidence. Such a variation having been made, the application should be granted.
Adam McCulloch
Sergeant McCulloch is a police officer who attended at the Karrakatta crime scene (counts 3 to 5). He provides additional information by way of a hand drawn sketch of the crime scene and the location of exhibits within that scene.
It is possible that Sergeant McCulloch's evidence will not be required given the pleas of guilty to counts 1 to 5. The additional information largely provides detail or clarification of information already contained within his previous witness statement. In any event the defence does not oppose the application regarding this witness, subject to a variance of the time for defence disclosure of the DNA expert evidence. Such a variation having been made the application should be granted.
Teresa Kurtis
Ms Kurtis was a police officer who provides additional information regarding documents that relate to the movement of exhibits relating to counts 3 to 5.
Again it is unlikely, given the pleas of guilty to counts 1 to 5, that Ms Kurtis' evidence will be required. To the extent that it is, her evidence merely provides clarification or further detail as to the matters covered in an earlier statement. Accordingly this evidence falls within the proofing exception and leave is not required.
Dr Jill Amanda Barnard
Dr Barnard was a doctor with the Sexual Assault Referral Centre (SARC) who saw the complainant in respect of counts 3 to 5. She has provided additional information regarding the physical injuries to the complainant and the possible mechanisms by which those injuries could have been caused.
Dr Barnard's evidence may not be required given the pleas of guilty to counts 3 to 5. In any event, the information that she provides is largely additional detail or clarification of existing evidence and falls within the proofing exception. To the extent that it is new it is in relatively small compass and any prejudice to the defence is sufficiently removed by the length of time before the trial starts. The application should be granted.
Paul Rankin
Mr Rankin is an engineer who is able to give evidence regarding the use of fabrics in certain models of car. This is relevant to the fibre evidence and the prosecution case that some of the fibres found are consistent with having come from a car of a make and model driven by the accused at the relevant time.
The defence does not oppose the granting of leave in respect of this evidence, but seeks a dispensation in regard to its obligation to disclose defence fibre expert reports. As I have noted earlier, this is dealt with by the order that the defence file and serve expert reports in respect of DNA and fibre evidence by 6 December 2019. Accordingly, this application should be granted.
Michael Smith
Mr Smith works for Bruck Textiles and provides information regarding fabric styles and colours used between 1989 and 1997. This also relates to the fibre evidence.
Again, the defence does not oppose the granting of leave but seeks a dispensation in regard to disclosure of defence fibre expert evidence, which has been allowed. Accordingly, this application should be granted.
Ian Summerton
Mr Summerton worked for the Yakka company and provides information regarding Telecom/Telstra uniforms and logos, the process by which Telstra clothing was ordered and the extent of the use of a particular fabric colour. This also relates to the fibre evidence.
This evidence falls into the same category as Rankin and Smith. Accordingly, this application should be granted.
Kevin Fernandez
Mr Fernandez worked for the Workwear Group and is able to give evidence regarding the production of the fabric used to produce Telstra uniforms. This also relates to the fibre evidence.
This evidence falls into the same category as Rankin, Smith and Summerton. Accordingly, this application should be granted.
Liberty Wagner-Chavez
Ms Wagner-Chavez works for Bruck Textiles and provides information which refers to and annexes a table of comparison of fabrics used to produce Telstra uniforms.
This evidence falls into the same category as Rankin, Smith, Summerton and Fernandez. Accordingly, this application should be granted.
Dr Jonathan Whitaker
Dr Whitaker's evidence has previously been referred to under Group A. He is included in Group B because the balance of his report (other than pages 32 to 35) is also amongst the materials provided to the defence since 30 July 2019. However, the prosecution states that this information relates to other evidence from Dr Whitaker that has already been disclosed. In substance, these parts of the report provide an explanation and foundation for opinions that Dr Whitaker has expressed in previously disclosed reports.
Arguably this falls within the proofing exception, but to the extent that it does not, any prejudice to the defence is sufficiently removed by the change to the date by which defence disclosure is required. In these circumstances the application should be granted.
Conclusion
Although the number of witnesses referred to in the applications may appear to be large, when examined in detail the evidence encompassed by the applications is not substantial. Much of the evidence in Group B is information which merely clarifies or provides further detail of existing statements and falls within the proofing exception. As such, leave is not required in respect of that evidence. In any event, that evidence, in my view, is not productive of material unfairness to the defence.
There are two broad areas of material new evidence. One relates to fibres and the other to DNA evidence. In regard to the DNA evidence the only part of it which is wholly new is that part of Dr Whitaker's report in regard to the mechanism by which DNA could have come to be under the fingernails of Ms Glennon. Given the prosecution's indication that it does not seek to rely on this evidence unless the defence seeks to raise the possibility of some mechanism involving ordinary social contact, no possible prejudice arises. The balance of the DNA evidence relates to detail as to continuity, procedures and methodology. To some extent this only provides clarification of existing evidence. However, to the extent that it is new, any prejudice is adequately dealt with by allowing the defence further time in which to consider that evidence before having to produce its own defence expert reports. The same is true of the fibre evidence, for which the disclosure date has also been varied.
After removing those applications that are not opposed, are dealt with by varying the defence disclosure date or are covered by the proofing exception, the witnesses in respect of whom the applications are opposed are relatively few in number and their evidence is not extensive. Whilst I have dealt with any prejudice to the defence on an individual basis, I have also considered the potential cumulative effect of having this material disclosed after 30 July 2019. It may be inconvenient and frustrating for the defence to be receiving this material at this stage, however I am unable to accept that when taken together it prevents the defence from having a fair and reasonable opportunity to prepare for trial.
For these reasons, I am satisfied that the trial will not be unfair if the applications are granted and the prosecution is permitted to adduce the evidence. In coming to this conclusion, I have also taken into account that the start date of the trial has been deferred by one week such that it will now commence on 25 November 2019.
It is not clear whether any further applications will be made by the State. That must be a possibility as the order continues to be operative. Given the approaching start of the trial it is important that any applications are made promptly, so as to avoid any doubt as to whether the evidence can be adduced.
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 Hall8 NOVEMBER 2019