Supreme Court New South Wales Medium Neutral Citation: R v Nancarrow (No 3) [2022] NSWSC 280 Hearing dates: 9 March 2022 Date of orders: 9 March 2022 Decision date: 09 March 2022 Jurisdiction: Common Law Before: Hamill J Decision: Application for discharge of jury refused. Catchwords: CRIMINAL LAW – procedure – application for discharge of the jury – cross-examination of accused – where photographs shown to accused in witness box undermine accused's version of events – whether Prosecutor had disclosed photographs – whether reference to photographs being available for inspection sufficient to fulfil disclosure requirements – where relevantly identical images disclosed in ISRAPs – whether any relevant unfairness – heat of the battle – limited capacity to impact on assessment of accused's credibility – no relevant unfairness – no prejudice justifying discharge of jury Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 141, 142 Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Edwards v The Queen [2021] HCA 28; 95 ALJR 808 Miller v R [2015] NSWCCA 206 R v Azari (No 2) [2017] NSWSC 515 R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227 R v Quami (No 40) [2016] NSWSC 807 Re K (2002) NSWCCA 374 Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448 Category: Procedural rulings Parties: Regina Shane Nancarrow Representation: Counsel: J Stanhope (Regina) B Neild (Nancarrow) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Nancarrow) File Number(s): 2019/242866 Publication restriction: Nil. Judgment 1. On Wednesday 9 March 2022, Mr Neild, counsel for the accused, made an application for a discharge of the jury. The application arose because of the potential prejudice, and/or unfairness, occasioned by the cross-examination of Mr Nancarrow by the Crown Prosecutor that morning. I refused the application and indicated I would provide reasons later. These are those reasons. Summary of evidence regarding the headtorch 1. It is necessary to provide a summary of the case of both parties as each relates to the line of cross-examination that provoked the application to discharge the jury. 2. It appears to be common ground that the deceased (Paul Donald) and the accused (Shane Nancarrow) had a heated argument about drugs, the details of which are of no present importance, a little while before the confrontation that led to Mr Donald's death. It is also common ground that each retreated to their respective private spaces within the premises after that argument. Mr Donald slept in a caravan outside while Mr Nancarrow slept in a bedroom upstairs. The layout of the bedroom is depicted in crime scene photographs that are before the jury and which were taken shortly after the incident. 3. The prosecution will contend that Mr Nancarrow was lying in his bed upstairs. When he became aware that the deceased had re-entered the main house from his caravan outside, the accused moved to a small kitchen counter and picked up a knife in preparation for possible confrontation with the deceased. This contention, on the prosecution case, is supported by the location of various items that are depicted in photographs. By contrast, the defence case is that the accused was sitting or lying on a lounge or couch, a short distance from the bed which is away from the kitchenette and towards the staircase where the stabbing occurred, and was using a knife to pick under his nails when the deceased entered the house and referred to him (the accused) by name. 4. Mr Nancarrow's evidence is that he had turned all of the lights off in his room to give the impression that he was asleep and to avoid further conflict. His evidence is that the only illumination was a headtorch or headlamp which allowed him to see the area in front of him: "Q. Was there any source of light - I withdraw that. Did you turn any source of light on in the room? A. Yeah, I had just a little headtorch that I turned on. Q. And were you wearing the headtorch or was it somewhere else in the room? A. No, I just had it in my lap in front of me. Q. Were you doing anything while you were sitting on the lounge? A. Yeah, I've - there's a little pocket knife on the table. I picked that up because I get fidgety and muck around and get fidgety with my nails and stuff. I was using that and scraping under my nails just a bit nervously." [1] 1. In his evidence in chief, Mr Nancarrow said, by the time he realised that Mr Donald had returned, the headtorch had been switched off: "Q. What did you understand to be happening when you heard the back door open and close? A. I knew that it was Paul coming back inside the house. Q. Could you hear anything going on from downstairs while you were upstairs? A. I could kind of hear them talking a little bit and then I heard my name said. Q. Could you tell who said your name? A. It was Paul. Q. Could you hear what he had said when he had used your name? A. I'm unsure of the context. Q. What did you do when you heard Paul say your name? A. That's when I - I'd already turned the headlight off and I just got straight up and sat down at the top of the stairs. Q. Did you bring anything with you when you sat at the top of the stairs? A. Yeah, I still had the knife with me. I placed it down on the floor as I sat on the stair below." [2] 1. In cross-examination he said: "Q. Mr Nancarrow, yesterday when you were giving evidence you described going upstairs to your room, after the argument with Mr Donald and sitting on a lounge. Do you remember giving that evidence? A. Yes. Q. As I understood your evidence, all of the lights in the room were off, is that right? A. Yes. Q. The light in the stairwell was also switched off? A. Yes. Q. The only illumination you had was a head lamp? A. That's right. Q. And you told us that you were just sitting on the lounge with the head lamp in your lap? A. Yep. Q. Did you have the head lamp in that position so that you could see what you were doing with cleaning your nails? A. Yep, with my hands. Q. You've told us that there came a point in time where you turned the head lamp off? A. Yep. Q. Is that right? A. Yeah, I would have. Q. Well, you would have or you remember? A. Well, I never left it on. Q. I'm sorry? A. I never left it on. Q. Well, when did you turn it off? A. I can't recall exactly when. Q. Do you remember having it on while you were going through this process of picking at your nails with the sharp knife? A. Yes. Q. Was it your evidence yesterday that you were engaged in that until Mr Donald came back into the house? A. Yes. Q. Does it flow from that that you switched the head lamp off at some point in time after Mr Donald had come back into the house? A. That's correct. Q. The purpose of using the head lamp, was that so that you didn't have to switch on any of the lights in your room? A. Yes. Q. And was it your evidence that you didn't want to switch on any of the lights in your room because you didn't want anybody else to know that you were still awake? A. Yes. And the window was open that was facing - the blind was open facing Paul's caravan. Q. Yes, so he's one of the people, you didn't want him to be able to see the lights on in your room, is that correct? A. Correct. Q. And this is part of your efforts to make sure that nobody else, either inside the house or Mr Donald who was at his caravan, would think that you were still awake? A. Yes. Q. And is that saying, thinking, what led you to turning the head lamp off when Mr Donald came back into the house? In other words, you didn't want people to see that there was a light on in the room? A. That's correct. Q. At some point in time after Mr Donald had come back into the house, you moved from where you were sitting on the lounge to the area at the top of the stairs? A. Yes. Q. Up until you made that move, you'd been sitting there in darkness, is that right? A. Yes. Q. Just sitting quietly, is that right? A. Yes. Q. You hadn't been saying anything, is that right? A. Sorry, I missed the last thing you said. Q. You hadn't said anything to Mr Donald or anybody else downstairs? A. No. Q. Is that right? When you got up to go to the area of the stairs, what did you do with the head lamp? A. I don't know what happened to it. Q. When you got up from where you say you were sitting on the lounge, did you go directly to the top of the stairs? A. Yes." [3] 1. Later in cross-examination, the accused was confronted with close-up photographs (or magnified versions of photographs already in evidence) of items on the bed. He agreed that amongst some remote controls and video game controllers, the headtorch was on his bed. However, he maintained his denial that he was lying on his bed at the relevant time. His evidence was that he did not move further than the corner of the lounge to the top of the stairs: "Q. If you could look at this image for me. Is that a closer view of that side of the bed that we can see on page 23? A. Yes. Q. Do you recognise the items on top of the doona cover? A. Yes. Q. What are they? A. TV remote control, stereo, PlayStation controller. Q. Anything else? A. I'm not sure. Q. I'll show you another image. Keep that one with you. A. It's the head torch. Q. Yes what you are looking at now is an even closer view of the items on that side of the bed. A. Yes. Q. What you can see now is that in addition to the remote control units you were talking about, and the X-Box unit. A. There's a head torch. Q. There's a head torch. A. Yeah. Q. It's placed right up against the remote control and the X-box unit isn't it? A. Yes. Q. Is that because you put it there when you switched it off? A. It would've got there somehow. It was rolled up with the doona. I never went over that side of the room because the floors creak and when Paul was still downstairs, I just went to the closest thing which was the lounge to make the least noise possible. Because every bearer in that room makes noise and the further I went into the room, the more noise it made. Q. Well I asked you earlier if you were sleeping on the right hand side of that bed - sorry not sleeping - I asked you earlier if you were lying on the right hand side of that bed when Mr Donald came back into the room. A. No I wasn't. Q. Well, I'm just going to put a proposition to you. When Mr Donald came back into the house downstairs and you heard him, firstly, did you switch off your headlamp? Is that the first thing you did? A. I would've only had it on in the early stages. Once I had - once I was in the middle of cleaning my hands, I didn't need it on anymore. I could just do it by feel. Q. Did you switch off the headlamp after you heard Mr Donald come into the house downstairs? A. No. Before. Q. Before you heard him come into the house? A. Yeah. Q. Why did you switch it off before you heard him come into the house? A. Because I didn't need it on and I didn't want any lights on for anyone to notice me. Q. Mr Nancarrow, didn't you tell us earlier that you switched it off when you heard Mr Donald come into the area of the house downstairs? A. Yeah, no, that was incorrect. It would've been off before then. Q. It would have been or it was off? A. It was. It was. Q. Look, I'm going to put a proposition to you. It's in the form of a scenario and some of it you've already rejected but I need to do it in a way that I think is fair to you so that you can answer it. So you reject that you were lying on that side of the bed but what I'm suggesting to you is that you were lying on that side of the bed and that you - the headlamp was in the position we can see it because you put it there while you were lying on the bed. What do you say about that? A. Absolutely not, no. Not at any time was I on that bed. Q. And I want to suggest to you that as you - sorry. As you have said in your evidence, you did walk across the room to the top of the stairs but it was from the area of the bed that you walked? A. From the corner of the lounge to the top of the stairs is the only place that I moved when I went in. I went straight there to make no noise, hardly any, and then straight back to the stairwell. I never moved from that position, sir. Q. So did you just say that when you went up, the only place you went to was the corner of the lounge where you were sitting? A. Yes. Q. So you're rejecting the proposition that you moved from the bed area to the top of the stairs at some point in time after Mr Donald came into the house? A. Yes. Q. And the next proposition was that when you went or as you moved across the room to the area at the top of the stairs you've picked up - did you pick up a knife from that area on top of the fridge? A. No." [4] 1. At this point the Prosecutor sought to tender the images shown to the accused and the application to discharge the jury was made. 2. The relevance of the photographs shown to the accused is that they had some capacity to undermine the accused's version of events and to support the prosecution's contention that the accused was lying on the bed, rather than on the lounge. This, in turn, might lead the jury to find that the accused's version was constructed, that his evidence of having the knife in his hand for a benign purpose was untrue, and that he had fetched the knife from the kitchenette for the purpose of confronting the deceased. 3. The discharge application was based on the asserted unfairness of the accused being placed in the position where he committed to his version of events in circumstances where there was available to the Prosecution relevant evidence on the issue and where that evidence had not been disclosed to the defence. Disclosure 1. The two photographs objected to, which the prosecutor sought to tender in the above exchange, were marked as Ex VD1(a) and (b) on the voir dire. In terms of disclosure, those photographs fell into somewhat different categories. 2. The first photograph was an enlarged or zoomed-in version of a photograph that had been disclosed and was already in evidence (Ex A, p 23). The failure of disclosure was said to arise from the fact that the digital format in which it was provided to the defence (Portable Document Format or "PDF") was not capable of the kind of magnification used to create the image shown to the accused in Ex VD1(a). In other words, and in practical terms, while the image was disclosed, neither Mr Nancarrow nor his lawyers were able to zoom in on the image to see that, possibly contrary to Mr Nancarrow's version of events, the headlamp was lying on his bed. 3. The second photograph was a magnified and cropped version of a photograph that had not been physically or electronically provided to the defence. 4. The Prosecutor submitted that the first image was disclosed, albeit in a format that did not allow for magnification, and that the accused could have obtained the item in a different format had he asked for it. As to the disclosure of the second photograph, the Prosecutor tendered a statement of Senior Constable Drew (Ex VDA) which said, in paragraphs 8 and 9: "Statement Preparation 8. When preparing this statement, I have referred to notes and photographs from the NSWPF Forensic Case File Number 4257454 prepared in relation to this matter. During my examination of this incident I took a number of photographs, some of which have been presented, with captions, as part of this brief of evidence. The balance of all unused photographs and documents relating to this matter have been retained in NSWPF Forensic Case File 4257454 supplied to Detective Senior Constable Teece and are available to be viewed at a mutually agreeable time if required. 9. During my examination I prepared a sketch and took a number of measurements of the house. I also caused Crime Scene Office Atkinson to take photographs and record the scene and prepare a sketch for an Interactive Scene Recording and Presentation System (ISRAPS) DVD. At a later stage I sent the sketch I had drawn to the NSW Police Force Forensic Evidence and Technical Services Imaging Section where a computer aided Drawing (CAD) and ISRAPS were prepared." 1. The prosecution's disclosure obligations are contained in ss 141 - 142 of the Criminal Procedure Act 1986 (NSW): 141 Mandatory pre-trial disclosure (1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required-- (a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142, … 142 Prosecution's notice (1) For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following-- (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial, (c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript, Note: This paragraph does not require the prosecution's notice to contain copies of transcripts of recorded statements (within the meaning of section 289D) unless the prosecutor proposes to adduce such transcripts at the trial. (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the trial, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person." [My emphasis] 1. In Edwards v The Queen [2021] HCA 28; 95 ALJR 808, Edelman and Steward JJ held at [68]-[69] that the disclosure obligations are not satisfied by providing the accused with advice that material existed and was available for inspection: "The respondent's submission was effectively that by informing Mr Edwards of the existence of the Cellebrite download on these occasions it had 'otherwise ... disclosed' a copy of the Cellebrite download. In effect, the respondent's submission in this Court was that the words 'has not otherwise been disclosed to the accused person' in s 142(1)(i) meant that a copy of a 'document' (being a record of information) need not be provided to the accused person so long as the accused person is told of the existence, but not the contents, of the document. This submission is contrary to the text, context, and purpose of s 142(1)(i). As to the text, it would treat disclosure of an electronic record of information stored in a physical form such as a hard drive in a fundamentally different way from any other record of information in physical form such as any other document, summary, exhibit, chart, explanatory material, or expert report. The meaning of 'otherwise ... disclosed' textually connotes a circumstance where disclosure, in the sense of provision of any type of physical document or thing, has occurred otherwise than in the prosecution's notice." [5] 1. This was not necessarily a majority view. The other members of the Court (Kiefel CJ, Keane and Gleeson JJ) found it unnecessary to determine whether the disclosure obligations had been otherwise fulfilled because the material was not shown to fall within s 142(1)(i), that is material that would "reasonably be regarded as relevant to the prosecution case or the defence case". [6] Even so, their Honours observed that s 142 was "only one of several sources of the prosecutorial duty of disclosure" and confirmed statements made by Leeming JA in the Court of Criminal Appeal concerning "good prosecutorial practice" and the desirability of disclosing material in the Prosecutor's possession. 2. In the present case, the material in question is plainly relevant to both the prosecution and the defence case. Based on the observations of the High Court in Edwards v The Queen, I was satisfied there was a breach of disclosure obligations with respect to the second photograph. While there was disclosure of the first photograph, the format in which it was disclosed was imperfect. However, the reality is that the defence legal team could have easily obtained (by asking) the relevant photograph in a format capable of closer examination of the items on the bed by zooming in on those items or magnifying the image. 3. Assuming there was a failure of disclosure, as the voir dire developed, there was plainly no unfairness of a kind that would have justified or necessitated the discharge of the jury. Unfairness 1. Generally speaking, a failure of disclosure leads to an objection to the admissibility of evidence rather than an application for discharge of the jury: see, for example, R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227 at [12]-[23] (Harrison J). 2. However, it is not difficult to imagine a case where a failure to disclose relevant material leads to unfairness requiring a jury to be discharged. In Miller v R [2015] NSWCCA 206, the Court of Criminal Appeal at [126] summarised the principles relating to applications to discharge a jury following an "inadvertent and potentially prejudicial event" at trial, by reference to the decisions of Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; and Maric v The Queen (1978) 20 ALR 513: "1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. 2) In deciding an application to discharge the jury, key considerations include: a) the fairness of the trial: Crofts at 440; b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441; c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; d) the stage at which the mishap occurs: Crofts at 440; Maric at 635; e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635. 3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. 4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'. 5)Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind: '… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript': Crofts at 440-441. 6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge 'is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind': Crofts at 441, but rather must apply the broader test stated at (4) above." 1. See also, for example, Re K (2002) NSWCCA 374 at [9]-[10] (Beazley JA, Sully and Simpson JJ), Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448 at [70] (Whealy J), R v Quami (No 40) [2016] NSWSC 807 at [8] (Hamill J) and R v Azari (No 2) [2017] NSWSC 515 at [22]-[23] (Adams J). 2. The voir dire and submissions on the discharge application developed organically. Part way through the application the Prosecutor raised the fact that part of the material disclosed well in advance of the trial was an ISRAPs presentation. This is an important evidentiary tool that allows the viewer to roam virtually around a crime scene from various points from which 360 degree photographs are taken. I was told that one of the camera angles in the ISRAPs presentation captured the items on the bed as depicted in the photographs used in the cross-examination that led to the application to discharge the jury. It could be magnified, and a screen shot or still image from the ISRAPs presentation was tendered as Ex VDC. 3. The application for discharge of the jury became somewhat muted at this point. [7] 4. The photographs that prompted the application (Ex VD1) look like this: 1. The magnified image in the ISRAPs (Ex VDC) looks like this: 1. There is no relevant unfairness in circumstances where a virtually identical image was available to the defence. The headlamp was on the bed and this was clear from the disclosed material in the ISRAPs presentation. The accused's provided his version of events in the face of this material. 2. Further, while in the heat of battle and in the course of cross-examination, the matter assumed significant importance in the minds of the parties, the Prosecutor could only ever take the matter so far. Mr Nancarrow's evidence was that he could not remember how the headtorch came to be where it is. The jury may find that to be unremarkable in the circumstances. He may have thrown it there as he got up to go to the top of the stairs. Its presence does not disprove the accused's account of where he was seated. Even if it did, or if the jury rejects his account that he did not lay on the bed or move about the room, that may be a matter upon which he was simply mistaken. It does not prove he was lying deliberately about that issue, let alone that the critical features of his account should be rejected. 3. I was, and remain, firmly of the view that there was no unfairness or prejudice requiring a discharge of the jury. ********** Endnotes 1. Tcpt, 8 March 2022, p 236(34). 2. Tcpt, 8 March 2022, p 238(19)-(21). 3. Tcpt, 8 March 2022, pp 296-297. 4. Tcpt, 9 March 2022, pp 302-303. 5. Edwards v The Queen [2021] HCA 28; 95 ALJR 808 at [68]-[69]. 6. Edwards v The Queen [2021] HCA 28; 95 ALJR 808 at [25]. 7. Tcpt, 9 March 2022, p 320. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2022