Citation: R v Seller; R v McCarthy (No 2) [2014] NSWSC 1288
Court: Supreme Court of New South Wales
Date: 31 July 2014
Judge(s): Button J
Background
This decision arose during a complex criminal motion involving two accused, Seller and McCarthy. The motion had originally been listed for three days but had extended into a fourth day, with proceedings the previous day grinding to a halt due to logistical difficulties experienced by the legal team for one of the accused.
Button J had made a standing request for three identical folders corresponding to each documentary exhibit, to enable proper conduct of the hearing. That request remained unmet when proceedings resumed, prompting a one-hour adjournment, to which senior counsel for the accused expressly agreed.
The immediate issue concerned the proposed tender of a document identified as Exhibit PH15, Volume 5. The copy provided to senior counsel for the Crown was not identical to the copy proposed to be tendered, raising a procedural fairness concern.
Legal Issues
- Whether a document could be tendered where the copy provided to the opposing party was not identical to the copy proposed for tender.
- Whether the court, as the tribunal of fact on the motion, could properly fulfil its role without an accurate working copy of the tendered document.
Decision
Button J rejected the tender of the proposed exhibit on two related grounds. First, tendering a document without providing the opponent with an accurate copy denies that opponent procedural fairness, as the opponent cannot properly assess the document's admissibility or other relevant matters.
Second, without an accurate working copy, Button J held that he could not properly discharge his function as the tribunal of fact. The volume and complexity of the documents, evidence, and legal issues before the court made the availability of consistent, reliable copies essential.
The rejection was not expressed as a permanent exclusion. Button J noted expressly that if the document could be brought into proper order before the close of documentary evidence, a further application for tender could be made.
Orders Made
No formal orders were recorded in the provided text. The court rejected the tender of the proposed exhibit (PH15, Volume 5) and left open the possibility of a further tender application if the procedural deficiencies were remedied.
Key Takeaways
- The Supreme Court held that tendering a document without providing the opposing party with an accurate and identical copy constitutes a denial of procedural fairness, warranting rejection of the tender.
- A court acting as the tribunal of fact is entitled to insist on accurate working copies of documentary exhibits where the volume and complexity of material makes this necessary for the proper discharge of its role.
- Rejection of a tender on procedural fairness grounds does not necessarily result in permanent exclusion; the door may remain open for a further application if the deficiency is corrected before documentary evidence closes.
- The decision arose in a specific procedural context involving repeated non-compliance with the court's document management requests over multiple hearing days, which informed the court's reasoning.
- Logistical failures by a party's legal team do not automatically justify indefinite accommodation; the court's patience is not unlimited, and procedural fairness runs in both directions.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.