R v Campbell; R v Waters (No. 4) [2023] NSWDC 629

District Court New South Wales

Medium Neutral Citation: R v Campbell; R v Waters (No. 4) [2023] NSWDC 629 Hearing dates: 27 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application refused. For orders see [29] Catchwords: Application to discharge jury. Cases Cited: 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 Category: Procedural rulings Parties: The Commonwealth Director of Public Prosecutions (The Crown) David Edward John Campbell (Accused Campbell) Tristian Egon Sebastian Waters (Accused Waters) Representation: Counsel: Mr S Flood (Crown) Mr M Varley (Crown) Mr R Driels (Accused Campbell) Mr D Dalton SC (Accused Waters) Mr P Hogan (Accused Waters)

Solicitors: Ms C Patrizi (Crown) Ms N Anastasiou (Accused) Mr T Dib (Accused Waters) File Number(s): 2018/17350 (Campbell) & 2018/20632 (Waters) Publication restriction: Nil.

JUDGMENT on application brought by the accused campbell for discharge of the jury 1. This trial commenced on 15 May 2023, and the Crown case is drawing to a close. Given the nature of the proceedings, there has been a large volume of documentary evidence comprising five volumes, contained in Exhibit A in the trial, comprising a total of 2,318 pages. 2. On Monday 26 June 2023, counsel for Mr Campbell applied for an adjournment for one day. In response to a subpoena served on his behalf on 14 March 2023, the accused had received on Thursday 22 June 2023 a number of documents in response to [5] and [7] of the Schedule to that subpoena. Those paragraphs called for at [5]:- "a copy of all surveillance reports, electronic surveillance materials, or physical surveillance reports in relation to Rohan Arnold between 1 January 2017 and 16 January 2018, including such report or materials in which Mr Arnold was a target, or otherwise identified in overseas jurisdictions." 1. At [7]:- "a copy of all surveillance reports, electronic surveillance materials, or physical surveillance reports between 1 January 2017 and 16 January 2018, relating to such surveillance activities which were undertaken in relation to Operation Amorgos, including any such surveillance, electronic surveillance, or physical surveillance conducted in Thailand." 1. The documents that were produced concerned tracking and listening devices installed in vehicles operated by Mr Arnold in 2017. The material was said to comprise over 10,000 files, and the accused needed an opportunity to assess the material. The application for an adjournment was not opposed and the matter stood over to today, 27 June. 2. This morning, the accused Campbell applied to discharge the jury. It was put on his behalf by counsel that the tracking device material created no problem for the accused, however with respect to the listening device material it concerned the period 8 August 2017 to 17 January 2018, and on initial assessment it was impossible to assess how long it would take to assess all of that material given that some of the entries were of short duration but other entries up to half an hour in length. 3. It was submitted that there had been ongoing attempts to obtain from the Australian Federal Police evidence concerning critical decision making during the investigation concerning incidents of threats to participants in the undercover operation, together with the assessment and attempt to mitigate those threats by the AFP. To that extent, further material had been sought from Federal Agent Millen concerning whether diary notes previously produced by that officer were complete.