Citation: [2025] NSWSC 1090
Court: Supreme Court of New South Wales
Date: 25 September 2025
Judge(s): Dhanji J
Background
The accused was on trial for the murder of Nathan Strudwick, who died on 17 December 2022 at Woy Woy after being stabbed through the neck with a weapon described as a "mini sword." It was not disputed that the accused inflicted the fatal wound. The central issue at trial concerned the circumstances surrounding the stabbing. The Crown alleged the accused had attended a nearby unit to obtain methamphetamine, became agitated when unsuccessful, obtained the weapon from another unit block, and then stabbed the deceased after an encounter in the street.
In the second week of the trial, it emerged that data extracted from the deceased's mobile phone over two years earlier (in July 2023) had never been disclosed to the Crown or the defence. A police officer had successfully extracted the phone data using Cellebrite software but had then gone on extended leave without informing the officer in charge (OIC) or updating the police database. The OIC only discovered the extraction existed after the Crown Prosecutor prompted her to revisit the issue during trial. The material, which ran to approximately 57,000 pages in total (with 972 pages of relevant messages), was not provided to the parties until 10 September 2025, nearly two weeks into the trial.
On the morning of 11 September 2025, counsel for the accused applied to discharge the jury, contending that the late disclosure rendered a fair trial impossible.
Legal Issues
- Whether the jury should be discharged on the basis that the late disclosure of the deceased's phone data deprived the accused of a fair trial.
- Whether the disclosure breach was so serious that any prejudice to the accused could not be remedied by measures short of discharge.
- Whether sufficient time remained for the accused's representatives to properly consider the material and deploy it at trial.
Decision
Dhanji J described the disclosure failure as an "egregious breach" and an "unsatisfactory situation," noting that the data had been extracted more than two years before trial but was only disclosed mid-trial due to a combination of a police officer's failure to communicate the extraction, an inaccurate database entry, and a lack of earlier follow-up by the OIC. The court accepted that the accused's counsel had very limited time to consider the material before making the discharge application.
Despite the seriousness of the breach, Dhanji J refused to discharge the jury. The court assessed the volume and nature of the relevant material, noting that the 972 pages of messages consisted of "bubble text" rather than densely packed content and that only certain portions (such as messages involving specific Crown witnesses) were likely to require close attention. Much of the material duplicated or overlapped with other disclosed material, and some witnesses had not yet completed their evidence, meaning the material could still be deployed in cross-examination and at trial.
The court acknowledged that a fair trial does not require a perfect trial, applying the principle from Jago v The District Court of New South Wales. Dhanji J considered whether measures short of discharge, including allowing further time for the accused's representatives to review the material, recalling witnesses already examined, and deferring completion of evidence-in-chief for witnesses yet to finish, could adequately cure any prejudice. The court concluded that these measures were sufficient and that the necessity threshold for discharging the jury had not been met. The trial had already endured significant interruptions, and a further disruption, while regrettable, did not compel discharge.
Orders Made
- The application to discharge the jury was refused.
- The trial continued with accommodations for the accused's representatives to consider the newly disclosed material, including the ability to recall at least one Crown witness.
Key Takeaways
- A failure by police to disclose relevant evidence extracted over two years before trial was characterised as an "egregious breach" of disclosure obligations, arising from a breakdown in communication within the investigating team and an inaccurate database entry.
- Despite the severity of the disclosure failure, discharge of the jury was not considered necessary where the prejudice could be addressed through practical measures such as additional time, witness recall, and deferred completion of evidence.
- A fair trial does not require a perfect trial: the Supreme Court applied the longstanding principle from Jago that irregularities and even serious prosecutorial failures do not automatically warrant discharge if the accused can still receive a fair hearing.
- The nature, volume, and format of the undisclosed material were relevant to assessing prejudice. "Bubble text" messaging data across 972 pages, much of it overlapping with other disclosed material, was found to be manageable within the timeframe available.
- Where Crown witnesses had not yet completed their evidence or could be recalled, the late disclosure did not irreversibly compromise the accused's ability to challenge that evidence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 142
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Evidence Act 1995 (NSW), ss 60, 65
Cases:
- Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48
- McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
- Ilievski v R; Nolan v R (2023) 112 NSWLR 375; [2023] NSWCCA 248
- R v Ahola (No 6) [2013] NSWSC 703
- R v Medich (No 6) [2016] NSWSC 1001
- R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- R v Bobak [2025] NSWSC 1057