AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 14 April 2022

R v Leung; R v Webster (No. 1)

[2022] NSWDC 137

Drugs
CRIME VOIR DIRE EVIDENCE ADMISSIBILITY PRACTICE AND PROCEDURE PROSECUTORIAL DUTY OF DISCLOSURE.

Citation: R v Leung; R v Webster (No. 1) [2022] NSWDC 137
Court: District Court of NSW
Date: 14 April 2022
Judge(s): Neilson DCJ

Background

Two accused, a woman and a man, faced an eight-count indictment relating to the alleged manufacture of cocaine at residential premises in Birchgrove. Police executed a search warrant at the property on 4 September 2019 and seized the mobile phones of both accused. The Crown alleged a joint criminal enterprise involving the extraction of cocaine from drug-impregnated paper imported into Australia.

During trial, the Crown sought to tender three categories of evidence: text messages extracted from the accused's phones (Exhibit VD4, divided into five groups), a Cellebrite phone extraction report showing internet searches (Exhibit VD5), and a further document (Exhibit VD6, not yet ruled upon in this judgment). The defence objected to most of this material on grounds including late disclosure and prejudice.

A central theme throughout the proceedings was the Crown's repeated failure to comply with court orders and statutory obligations under Part 3, Division 3 of the Criminal Procedure Act 1986 (NSW). The data from both phones had been downloaded months before trial, yet full disclosure occurred only days before, or after, the trial commenced.

Legal Issues

  • Whether the "stocking texts," "advent 2 texts," "clean laundry texts," and "tobacco texts" in Exhibit VD4 should be admitted into evidence against one or both accused
  • Whether the "advent 1 texts" in Exhibit VD4 were admissible without objection
  • Whether Exhibit VD5 (Cellebrite internet search history) was admissible against Mr Webster
  • Whether the Crown's failure to comply with disclosure obligations and court orders warranted exclusion of the evidence
  • Whether the stocking texts, if admitted in a jury trial, would have required exclusion under section 137 of the Evidence Act 1995 (NSW) for prejudice exceeding probative value
  • Whether the advent 2 texts raised a problem of duplicity in the indictment

Decision

Stocking Texts (Exhibit VD4, texts 1 to 5): The court rejected these texts against both accused. The Crown's argument was that because Mr Webster is male, a request to Ms Leung for "stockings" must have been for use as a sieve in cocaine extraction. Neilson DCJ found this reasoning fallacious: "stockings" covers compression stockings used by travellers, and evidence showed Mr Webster had a documented personal interest in hosiery-style garments, making the inference unreliable (at [32]-[39]). In a jury trial, the texts would have been excluded under section 137 of the Evidence Act for creating a risk of improper use; the court saw no reason to apply a different standard in a judge-alone trial (at [40]). Additionally, because the Crown had not disclosed its intention to rely on these texts, defence counsel had not objected to expert chemist Dr Coghlan's earlier questions referencing stockings as sieves, causing prejudice to the defence (at [41]-[45]).

Advent 1 Texts (Exhibit VD4, texts 6 to 11): Neither accused objected to these texts, and the court admitted them into evidence against both Mr Webster and Ms Leung without further discussion (at [46]).

Advent 2 Texts (Exhibit VD4, texts 12 to 25): The court rejected these texts against Mr Webster. The Crown relied on text 12, which referred to Mr Webster having a set of keys to the premises before his overseas departure, to show prior dominion over the property. However, this created a duplicity problem: if Mr Webster participated in manufacture before leaving Australia on 15 June 2019 and again after returning on 30 July 2019, the Crown was in substance alleging two separate acts of manufacture rather than one ongoing course of conduct (at [48]-[58]). Applying principles from Johnson v Miller (1937) 59 CLR 467 and related authority, the court found the objection had substance and rejected the tender (at [58]).

Clean Laundry Texts (Exhibit VD4, texts 26 to 30): These texts, exchanged on the afternoon of 3 August 2019, asked that the laundry be cleaned before a visitor arrived. The Crown argued this implied the laundry had been used for chemical extraction shortly before. The court rejected admission, primarily because texts 26 to 29 had been disclosed as early as July 2021 but their significance was never communicated to the defence through any Crown Case Statement or Statement of Facts, and text 30 was not disclosed until 8 March 2022, after the court-ordered deadline (at [66]-[67]). Admitting the texts would reward non-compliance with statutory disclosure obligations and the court's own orders. The court added that even if admitted, it would give the texts no weight as a tribunal of fact: cleaning up a chemical extraction process within approximately fifteen minutes before a visitor's arrival would be almost impossible, and the simplest explanation was a domestic housekeeping request (at [68]).

Tobacco Texts (Exhibit VD4, texts 31 to 34): The Crown tendered these to establish that Mr Webster was a smoker residing in bedroom two. The court rejected them because there was no live dispute about which bedroom Mr Webster occupied, making the probative value "miniscule," and admission would further encourage the kind of disclosure failures that Part 3, Division 3 of the Criminal Procedure Act is designed to prevent (at [71]).

Exhibit VD5 (Internet Search History): This Cellebrite report showed searches on Mr Webster's phone on 13 August 2019 for chemical suppliers including Recochem and Sydney Solvents, and for substances such as lacquers, thinners, and methyl ethyl ketone. The Crown sought to link these searches to the isopropanol used in the alleged cocaine extraction. The court excluded Exhibit VD5 under section 135 of the Evidence Act on the ground that the evidence was confusing, potentially prejudicial, and of minimal probative value: no expert evidence had been adduced explaining the chemical relationships between the searched substances and isopropanol, Mr Webster had not searched for isopropanol itself, and service of the material occurred effectively on the Friday before the trial commenced (at [81]-[84]).

Orders Made

  • The "stocking texts" in Exhibit VD4 (texts 1 to 5): tender rejected as against both accused
  • The "advent 1 texts" in Exhibit VD4 (texts 6 to 11): admitted into evidence against Mr Webster (and Ms Leung, without objection)
  • The "advent 2 texts" in Exhibit VD4 (texts 12 to 25): tender rejected as against Mr Webster
  • The "clean laundry texts" in Exhibit VD4 (texts 26 to 30): tender rejected
  • The "tobacco texts" in Exhibit VD4 (texts 31 to 34): tender rejected
  • Exhibit VD5: tender rejected pursuant to section 135 of the Evidence Act 1995 (NSW)

Key Takeaways

  • Late disclosure of phone extraction data carried real consequences in this trial. The District Court excluded multiple categories of text message evidence in part because the Crown failed to serve full Cellebrite material until 8 March 2022, the day after the court-ordered deadline, even though the data had been downloaded from Ms Leung's phone by July 2021 and from Mr Webster's phone by September 2021, a gap of approximately six months that was not adequately explained (at [29]-[31]).

  • Disclosure obligations extend beyond simply providing voluminous material: the Crown also has an obligation to identify in its Crown Case Statement and other disclosed documents the specific material it intends to rely upon at trial. Burying relevant texts within hundreds of pages of Cellebrite records without any highlighting was found insufficient (at [6], [25], [27]).

  • Where a Crown argument rests on stereotypical assumptions, the court will scrutinise those assumptions carefully. The inference that a male requesting "stockings" must have been seeking sieves for drug manufacture was rejected as fallacious when the surrounding evidence offered innocent and contextually plausible explanations (at [32]-[39]).

  • Duplicity concerns can be a basis for excluding evidence. When the Crown's reliance on particular texts effectively required proof of two separate episodes of offending, rather than one ongoing act, the court found that raised a substantive problem going to the fairness of the charge as framed (at [52]-[58]).

  • Under section 135 of the Evidence Act, a court sitting as tribunal of fact may exclude evidence that is confusing and of minimal probative value even without a jury present. The absence of supporting expert evidence to explain the significance of internet searches for chemical products was a material deficiency that rendered the evidence more likely to cause unfair prejudice or undue waste of time than to assist the fact-finding exercise (at [82]-[84]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Edwards v The Queen [2020] NSWCCA 57
- Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65
- Johnson v Miller (1937) 59 CLR 467
- Mallard v The Queen (2005) 224 CLR 125
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321
- S v The Queen (1989) 168 CLR 266
- Walsh v Tattersall (1996) 188 CLR 177