Citation: R v Campbell; R v Waters (No. 4) [2023] NSWDC 629
Court: District Court of NSW
Date: 27 June 2023
Judge: Mahony SC DCJ
Background
The accused Campbell and co-accused Waters were on trial on criminal charges. The trial commenced on 15 May 2023 and involved a large volume of documentary evidence running to over 2,300 pages across five volumes.
In response to a subpoena issued in March 2023, the accused received over 10,000 files of tracking and listening device material on 22 June 2023, shortly before the Crown case was due to close. The listening device material covered the period August 2017 to January 2018 and concerned recordings made in vehicles operated by a person referred to as Arnold.
The accused had received an adjournment of one day to consider the material. On the following morning, counsel for the accused applied to discharge the jury, arguing that the late production of this voluminous material made a fair trial impossible.
Legal Issues
- Whether the late production of listening device and tracking device material warranted discharge of the jury to prevent a miscarriage of justice
- Whether the Crown had complied with its duty of disclosure in relation to the material
- Whether any real prejudice arose from the accused's inability to fully assess the listening device material before the close of the Crown case
Decision
Issue 1: Notice and Disclosure
The District Court found that the accused had been on notice of the tracking and listening device material from at least January 2019, and no later than February 2020, when the Crown disclosed the existence of the material in a letter (Exhibit J) (at [26]-[27]). The Crown had specifically disclosed that potentially disclosable material existed outside the brief of evidence. The court was satisfied the Crown had complied with its duty of disclosure (at [27]).
Issue 2: Prejudice to the Accused
The court examined the listening device material and found that it consisted substantially of irrelevant conversation between Arnold and the accused about family and other business matters (at [26]). The Crown did not rely on the material, and the court assessed there was a very low likelihood that any of it would advantage the accused (at [27]). The court found that any prejudice arising from the loss of opportunity to assess the material was more illusory than real, particularly given that no steps had been taken to assess it in the three years before trial (at [29]).
Issue 3: Fair Trial and Miscarriage of Justice
Applying the principles from Medich v R [2021] NSWCCA 36, which drew on Miller v R [2015] NSWCCA 206, and the High Court's formulation in Crofts v R (1996) 186 CLR 427 that discharge should only occur when necessary to prevent a miscarriage of justice, the court concluded that this trial could not be characterised as unfair (at [28]). The separate issue of the AFP's response to threats against undercover operation participants was already addressed through evidence from UCO Ivan and was irrelevant to the listening device material from Arnold's vehicle (at [28]). The court found no prospect of any miscarriage of justice and refused the application (at [29]).
Orders Made
- Application to discharge the jury refused.
Key Takeaways
- Refusing the application, the District Court held that a jury discharge is warranted only when necessary to prevent a miscarriage of justice, consistent with the principles summarised in Medich v R [2021] NSWCCA 36 and Miller v R [2015] NSWCCA 206 (at [25]).
- Where an accused has been on notice of potentially disclosable material for approximately three years prior to trial and took no steps to obtain and assess it, any prejudice flowing from late production of that material is likely to be characterised as illusory rather than real (at [29]).
- The Crown's disclosure of the existence of material not included in the brief of evidence, by way of a letter identifying that material, was sufficient to satisfy the prosecution's duty of disclosure (at [27]).
- The fact that the Crown does not rely on late-produced material is a significant factor weighing against a finding of prejudice sufficient to justify discharge (at [27]).
- No finding of Crown non-disclosure was available on these facts, and the court emphasised that the accused had ample opportunity to follow up and assess the disclosed material before trial commenced (at [27], [29]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- Medich v R (2021) 390 ALR 398; [2021] NSWCCA 36
- Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206