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Supreme Court 20 May 2024

R v JM (No 3)

[2024] NSWSC 772

Homicide
CRIME MURDER JUDGE ALONE TRIAL OBJECTION BY THE ACCUSED RELEVANCE VIDEO EVIDENCE

Citation: R v JM (No 3) [2024] NSWSC 772
Court: Supreme Court of New South Wales
Date: 20 May 2024
Judge: Dhanji J

Background

The accused, a young person at the time of the alleged offences, faced a judge-alone trial for murder and wounding with intent to cause grievous bodily harm. The deceased had been in a relationship with the accused's former partner, and the Crown case was that significant animosity existed between the accused and the deceased in the lead-up to the fatal stabbing on 29 May.

On the morning the trial was to commence, the Crown indicated it intended to play a video file extracted from the accused's phone via a Cellebrite digital forensic examination. The accused's counsel stated he had only become aware of the video's existence, and the Crown's intention to play it, at approximately 9:30 that morning.

The accused's representatives had previously been provided with the Cellebrite extraction on a USB stick, at their own request. However, that USB contained a section of data files accessible only as thumbnails that could not readily be opened. The parties proceeded on the basis that the specific video had not been practically accessible to the accused's legal team, and the Crown had not previously indicated it would form part of the prosecution case.

  • Whether the Crown had failed to disclose the video evidence to the accused in accordance with pre-trial disclosure requirements under the Criminal Procedure Act 1986 (NSW)
  • Whether, given that failure, the court should exercise its discretion under s 146(1) of that Act to refuse to admit the video

Decision

Dhanji J accepted that the accused's counsel had no prior notice that this video would be led as part of the Crown case. Despite the Cellebrite extraction having been provided to the defence on a USB stick, the provision of that material was understood as a disclosure exercise at the accused's request, not as an indication of what the Crown intended to tender at trial. The accused could not reasonably have been expected to understand that inaccessible thumbnail files would form part of the prosecution's evidence.

His Honour also noted that the parties had engaged in extensive pre-trial communications, including an email as recently as 15 May 2024. Throughout those discussions, no mention had been made of this video, even though the accused had indicated an intention to cross-examine the officer-in-charge about aspects of the Cellebrite examination.

On the question of relevance, the court accepted that the video was relevant. It appeared to show the accused stabbing the tyres of a car belonging to the brother of the deceased's partner, an act that occurred in the early hours of 28 May and which the deceased apparently referenced immediately before the fatal stabbing on 29 May. The Crown argued it was relevant to questions of the accused's state of mind, including the issue of self-defence.

However, the court found that significant other evidence was already available to address those same issues, including witness statements and a transcript of events immediately preceding the stabbing. Weighing the value added by the video against the importance of proper pre-trial disclosure, particularly for potentially voluminous electronic evidence where the defence may lack resources to examine everything independently, His Honour exercised the discretion under s 146(1) to exclude the video.

Orders Made

  • The video evidence was excluded and not admitted.

Key Takeaways

  • Section 146(1) of the Criminal Procedure Act 1986 (NSW) gives a court discretion to refuse to admit evidence where the tendering party failed to disclose it in accordance with pre-trial disclosure requirements, even if the material was technically in the opposing party's possession.
  • Providing electronic material to the defence at their own request does not automatically constitute disclosure of an intention to rely on specific files within that material as part of the Crown case.
  • Where electronic evidence is voluminous, a court may be slow to hold that an accused was on notice of specific content, particularly content that was not readily accessible within the provided material.
  • The discretion to exclude under s 146(1) is informed by the overall significance of the disputed evidence relative to what is already available, and by the prejudice caused to an accused by late disclosure on the first day of trial.
  • Proper pre-trial disclosure of electronic evidence was emphasised as an obligation on the Crown, given the resource burden that comprehensive independent examination of large digital extractions may place on an accused.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 146(1) (court's discretion to refuse to admit evidence not properly disclosed)

Cases:
No cases were cited in the judgment.