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Court of Criminal Appeal 3 April 2020

Edwards v R

[2020] NSWCCA 57

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE NATURE OF DUTY OF DISCLOSURE CONSIDERED WHETHER VERDICTS OTHERWISE UNREASONABLE APPEAL DISMISSED

Citation: Edwards v R [2020] NSWCCA 57
Court: Court of Criminal Appeal, New South Wales
Date: 3 April 2020
Judge(s): Leeming JA (at [1]); Johnson J (at [77]); Harrison J (at [78])

Background

The appellant was convicted by a District Court jury on six counts of aggravated sexual intercourse with a person aged over 10 and under 14 years. The complainant was the niece of his then wife and was under his authority at early morning "boot camp" fitness sessions he conducted as a personal trainer at a council park near Newcastle in 2012. The first four counts related to offending in the appellant's utility vehicle; the remaining two counts concerned offending in the male toilets at the same park approximately one week later.

During the investigation, police seized the appellant's mobile phone and extracted a copy of its contents through a process known as a Cellebrite download. The Crown disclosed the existence of this download in its pre-trial materials on at least three occasions and offered to provide a copy on request, but the defence did not seek access to it before or during the trial.

On the business day before trial commenced, the Crown notified the defence that it intended to call a new witness, Ms Birchill, who had participated in the boot camps. She gave evidence at trial that the appellant had a key to the male toilet block. It only emerged after closing addresses that the Crown had identified Ms Birchill's contact details from the Cellebrite download.

  • Whether the trial miscarried due to the combination of the Crown's late disclosure of Ms Birchill as a witness and its failure to disclose that her identity had been derived from the Cellebrite download of the appellant's mobile phone.
  • Whether the Crown's duty of disclosure required it to alert the defence to the ways in which the contents of the Cellebrite download might assist the defence case, including by identifying potential defence witnesses.
  • Whether the jury verdicts on counts 6 and 7 (the toilet block offences) were unreasonable, given contested evidence about whether the appellant possessed a key to the toilet block.

Decision

On the disclosure ground, Leeming JA (with Johnson and Harrison JJ agreeing) held that no miscarriage of justice had occurred. The Crown had repeatedly and clearly disclosed the existence of the entire Cellebrite download and offered the defence access to it. Because the full body of electronic material had been made available, the Crown was under no further obligation to disclose how it had used that material to identify Ms Birchill as a potential witness.

The Court was equally clear that the Crown's disclosure obligations under ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) and s 15A of the Director of Public Prosecutions Act 1986 (NSW) do not require the prosecution to interrogate a large dataset and then advise the defence on the ways in which that material might be useful to it. Those statutory duties are satisfied by disclosure of the material itself. It is not for the Crown to anticipate or comment on the potential utility of disclosed material to the defence.

The Court also noted that a complaint about non-disclosure must be assessed in the whole. Here, the defence had received timely notice of the existence of the download, was offered a copy, did not request access, raised no objection to Ms Birchill being called, and made no application for an adjournment. Taken together, these circumstances did not establish a breach of the Crown's disclosure obligations or a resulting miscarriage of justice.

On the unreasonable verdict ground, the Court rejected the submission that the evidence about the toilet block key made the verdicts on counts 6 and 7 unsafe. Ms Birchill gave firm evidence that the appellant had a key, and was not challenged on this point. The documentary evidence said to contradict that evidence was equivocal. The jury, having seen and heard the witnesses, was well placed to weigh that testimonial evidence against the documentary records. The complainant's evidence about the sexual offences themselves was described as firm, and the existence of inconsistencies and errors in Crown witnesses did not of itself render the verdicts unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Crown's disclosure obligations under the Criminal Procedure Act 1986 (NSW) and the Director of Public Prosecutions Act 1986 (NSW) are satisfied by making material available to the defence; those obligations do not extend to interrogating a large body of electronic material and alerting the defence to the ways in which that material might assist its case.
  • Where the Crown has disclosed the entirety of an electronic dataset and offered the defence access to it, no separate obligation arises to disclose the internal investigative process by which the Crown identified a witness from within that dataset.
  • A claim of non-disclosure must be assessed in the whole of the circumstances, including whether the defence sought access to the disclosed material, raised any objection, or applied for an adjournment upon being notified of a late witness.
  • Inconsistencies and errors in Crown witnesses do not automatically render a verdict unreasonable; a jury that has seen and heard the witnesses is best placed to weigh testimonial evidence, particularly where a complainant has given firm and detailed evidence.
  • In dismissing the appeal, the Court confirmed that the relevant disclosure provisions fall short of requiring the Crown to act as an analyst or advisor on the potential defensive utility of material it has already disclosed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C, 112, 578A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 146, 147
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 88
- Surveillance Devices Act 2007 (NSW), s 7

Cases:
- Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48
- Grey v The Queen [2001] HCA 65; 75 ALJR 1708
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- Obierzynski v R [2019] NSWCCA 103
- Potier v R [2015] NSWCCA 130
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46