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Supreme Court 10 July 2019

R v Fitzpatrick (No 5)

[2019] NSWSC 976

Homicide
CRIMINAL PROCEDURE APPLICATION TO DISCHARGE JURY NON REPORT HELPFUL TO ACCUSED WHETHER NON MAKING MATERIAL”

Citation: R v Fitzpatrick (No 5) [2019] NSWSC 976
Court: Supreme Court of New South Wales
Date: 10 July 2019
Judge(s): Campbell J

Background

The accused stood trial for the murder of Mr Burrows, who died as a result of an explosive device. The Crown case was circumstantial, with capacity, motive, and opportunity as the relevant considerations for the jury.

During the trial, three documents described as "bomb-making material" had been admitted into evidence following a pre-trial ruling. That ruling found the material admissible, not as tendency evidence, but as evidence that the accused had knowledge that explosive devices could be improvised, which was relevant to his capacity to commit the offence.

A senior forensic chemist, Peter Ballard, had prepared four expert certificates relevant to the proceedings. Three had been properly disclosed and served. A fourth certificate, dated 3 November 2016, had not been disclosed prior to or during the pre-trial admissibility argument. That certificate contained opinions that were helpful to the accused, including that one of the bomb-making documents was clearly humorous and provided no real instructions, and that another purported method could not actually cause an explosion. Its non-disclosure only came to light during the trial itself.

  • Whether the non-disclosure of Mr Ballard's fourth expert certificate warranted the discharge of the jury.
  • Whether the non-disclosure was deliberate or inadvertent.
  • Whether the non-disclosure, if it had been available, could have changed the outcome of the pre-trial admissibility ruling, including the s 137 exclusionary analysis under the Evidence Act 1995 (NSW).
  • Whether appropriate judicial directions could overcome any resulting prejudice to the accused.

Decision

Campbell J applied the principles from Crofts v The Queen (1996) 186 CLR 427, where the High Court held that no rigid rule governs applications to discharge a jury following an inadvertent and potentially prejudicial event. The relevant factors include the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of judicial directions.

His Honour accepted the Crown's explanation that the non-disclosure resulted from inadvertence and bungling rather than any deliberate forensic decision. While describing the non-disclosure as "very unsatisfactory," Campbell J found it did not amount to deliberate misconduct.

On the question of materiality, Campbell J concluded that Mr Ballard's undisclosed opinions were largely consistent with the understanding of the bomb-making material that had already been apparent to counsel and the court during the pre-trial argument. The basis for admissibility had been narrow: the documents were admitted solely as evidence of the accused's knowledge that explosive devices could be improvised, and not as a blueprint for the specific device that killed Mr Burrows. The undisclosed certificate would not, in his Honour's view, have materially altered that admissibility ruling or the s 137 balancing exercise.

Campbell J determined that the report could be addressed in the ordinary course of evidence, that its content favourable to the accused would be drawn to the jury's attention by both the judge and defence counsel, and that appropriate directions would sufficiently mitigate any risk of undue prejudice. He was not persuaded that the non-disclosure was capable of depriving the accused of a fair trial, and refused the application.

Orders Made

  • The application to discharge the jury was refused.

Key Takeaways

  • The Supreme Court applied the Crofts v The Queen framework, confirming that a discharge application arising from an inadvertent event during trial requires assessment of the seriousness of the occurrence, the stage of proceedings, the deliberateness of the conduct, and whether judicial directions can cure the prejudice.
  • Non-disclosure of an expert report helpful to an accused does not automatically warrant discharge of a jury, particularly where the non-disclosure is innocent and its practical impact on prior rulings is limited.
  • Where a pre-trial admissibility ruling was made on a narrow and specific basis, an undisclosed report consistent with the court's existing understanding of the material is less likely to be regarded as capable of altering that ruling.
  • Inadvertent prosecutorial failures, even serious ones, are distinguished from deliberate misconduct and weigh against discharge where effective curative directions remain available.
  • Refusing the discharge, the court noted that the previously undisclosed material would be addressed through Mr Ballard's evidence in the ordinary course and through targeted jury directions, ensuring the accused retained the benefit of the favourable opinions it contained.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where probative value is outweighed by the danger of unfair prejudice)

Cases:
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- R v Fitzpatrick (No 2) [2019] NSWSC 836