New South Wales Supreme Court CITATION : REGINA v. WILLOUGHBY [2000] NSWSC 751 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70082 of 1999 HEARING DATE(S) : Monday 31 July 2000 JUDGMENT DATE : 31 July 2000 PARTIES : REGINA v. WILLOUGHBY, Leyton Terence Matthew JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: D. Arnott Accused: W. Terracini, SC./G. Newton SOLICITORS : Crown: S.E. O'Connor Accused: W.H. Parsons & Associates CATCHWORDS : Criminal law - trial - evidence - tendency evidence - effect on trial - necessity for notice - application to dispense with notice - prejudice curable by adjournment, discharge and costs - undertaking by Crown to pay costs thrown away LEGISLATION CITED : Evidence Act 1995 DECISION : Jury discharged. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70082 of 1999 GREG JAMES, J. AND A JURY OF 11 MONDAY 31 JULY 2000 REGINA v. LEYTON TERENCE MATTHEW WILLOUGHBY JUDGMENT (On discharge of jury - see p.260 of transcript) 1 HIS HONOUR: At what was almost the end of the Crown case, application was made by the Crown to call evidence of the use on the preceding night to the alleged day of the killing by the accused of a mobile telephone. That evidence was led to establish he was the user of the mobile phone which rang through to directory assistance seeking the Botany Police telephone number at the time at which the eye witness to the killing said he saw the assailant apparently using a mobile phone. 2 There had been evidence in the proceedings of the various times during which that phone had been used on that evening and on the day of the killing. There was evidence from which it was sought to prove that the accused exclusively used the phone. That evidence had reached the point at which I had expressed the view that the evidence could be accepted by a jury as proving that the accused habitually, if not exclusively, used the mobile phone himself. 3 The evidence that it is now sought to elicit was provided to the defence at or before committal and since, including at and prior to trial. It is evidence that the accused used the mobile phone and a voice answering system in the process of trading in marijuana, at least with one couple. 4 No notice had been given by the Crown to the defence of the use of that material as tendency evidence within s.97 of the Evidence Act 1995. Until now, its use was apparently contemplated to show calls with the accused proximate to the relevant time, not for the purpose of those calls. It is submitted that the purpose is relevant to whether the accused would permit others access to the phone. 5 In a sense, it is not tendency evidence but is evidence of the use of a tool of crime such as to enable the identification of the accused with the person using the mobile phone at the scene of the killing and thus to prove him to be the assailant. 6 I have thought better to consider it as tendency evidence for the purpose of dealing with the Crown's application. 7 Since the fate of that application has already been communicated by me to counsel following argument in the absence of the jury, I am concerned with, in these reasons, summarising what has occurred. Although neither counsel requires the reasons in extenso, they do require the summary for what background it affords for the possible enforceability of the undertaking that I am advised will be given in consequence of the Crown's attitude to a discharge application by the defence, recognising the rulings I would make as to the admissibility of the evidence. 8 This is a circumstantial evidence case which critically turns on identifying the assailant. The evidence now under consideration, when taken in conjunction with the other evidence in the case including:- (a) the discussion by the accused with his employer of confronting and chasing away a person who had been seen entering or prowling around his home; (b) the call to directory assistance indicating content referable to the circumstances of the assault; (c) the eye witness identified the assailant as being a person similar in description to the accused using a mobile phone and referring to the assailant claiming the deceased had been attempting to break in or steal from his premises; and (d) the accused's mobile phone was used at or about that time - indeed was the only mobile phone used at that time by that service provider; is such that even having regard to the possible content of the inferences that might be drawn from those matters being cut down by other matters given in evidence, that is:- (a) that many Polynesian people, including some that might fit the description, lived in the area; (b) that the accused has asserted an alibi and that alibi asserts a locus for him at the relevant time, at a place which, equally with the location of the killing, fits the telephone service provider information tendered in evidence; and (c) that the likelihood or possibility that the assailant's call might have been supplied from another service provider cannot be entirely ruled out (the records of those service providers were destroyed before the sinister nature of the death became apparent some four to six weeks after the finding of the body), as to identify the accused with the personal use of the phone at the relevant time and hence to materially assist to establish he was the assailant. 9 Putting those matters all together, it still seems to me that this evidence could have a critical effect upon the trial and if that is so, then it answers the tests for admissibility posed by the requirements of both ss.97 and 101 of the Evidence Act 1995, even if it is to be treated as tendency evidence. 10 It is clearly enough evidence that is capable of showing such a degree of association between the accused and the telephone hand set and answering system as to have probative value of significance. That it is evidence of dealing in marijuana but not indicating a particularly violent disposition does not seem to me to create any real risk of prejudicial effect, once a proper direction is conceded as available for the jury to discount the probability of them being minded to convict the accused on the basis that he was a drug dealer. 11 In any event if the mobile phone is simply a tool of crime such as to link him with what has occurred so that I am not dealing with it as tendency evidence, then, in my view, the exercise of discretion under ss.137 and 135 would not fall in favour of the accused, having regard to what I accept as high probative value of the evidence. 12 That left me then considering the effects on this trial of the Crown not having given notice in a reasonable time that the evidence was to be used in this way. 13 As it happened, with frankness, counsel for the accused conceded that it had been intended to elicit evidence that the accused had not previously been convicted and the evidence would have been available for the Crown to rebut the good character the defence asserted. If that was the only use to which it would have been put, then the question of whether the defence would have, in those circumstances, continued to assert good character in that way, or whether or not I would have permitted the Crown to call it if this was to be its only use, considering the accused was not convicted of any offence, raised very interesting questions which need not now be dealt with. It is clear that if the evidence is admitted in chief, it remains open for the defence to utilise good character in that way and that way or perhaps otherwise to diminish the value, including any prejudicial value, it might have and to pray that in aid in addition to the direction I would give. 14 However, the most important matter I must consider is that the Crown did not give notice this evidence would be used in this way in adequate much less reasonable time. The Act is quite clear the evidence is not to be used for a tendency purpose unless either notice is given or the necessity for that notice is dispensed with under s.100. 15 It is therefore necessary I consider the application of s.100. 16 Critical as I have held the evidence is, in my view, and answering the test which would make it admissible I am disposed in favour of it being admitted for that purpose, provided the defence is protected from any untoward disadvantage. 17 Given those circumstances, I enquired of the Crown what the Crown's attitude would be to affording the defence an opportunity to test it, or to recast its case to take some such step as might ameliorate its decision to run the case in the way which it has to date. The Crown at that point conceded if the evidence was to go in, then it was open to the defence to claim an adjournment or, as it has, a discharge and that the Crown could not oppose that discharge. 18 It still did not seem to me that would entirely meet the exigencies of the case since the accused had conducted the case and met the costs of his defence in the way in which he had to this point so that if there were a discharge those costs would be thrown away. 19 The Crown however has proffered an undertaking to enable the disadvantage to the defence position to be as far as possible rectified, which undertaking is designed to overcome such impediments as might have existed for the dispensing with the reasonable notice requirements on terms under s.100(6). 20 It is accepted by the defence that the undertaking, if properly covering such disadvantages as would be caused to the defence if the evidence was to be used in this case, goes as far to cure the procedural prejudice in this regard as one is able to. Of course, the enforceability of that undertaking will have to abide by what occurs in the interim between ceasing today in consequence of a discharge and the hearing coming on again in the future. 21 The defence has sought that I remain in the trial. The Crown does not oppose that course. The suggestion is that it would be expeditious and cost saving in that the existing rulings could well stand, subject to there being any change in evidence. Both parties have indicated that they need time to investigate. Each has indicated that the matter would not be ready to proceed until following the Christmas vacation. Those decisions are no doubt made in the context of that period of time during which both court proceedings and proper investigation will be impossible, thanks to the Olympics. 22 This matter has been outstanding for a considerable period of time and I am informed that the accused, who is now on bail, was in custody for a period of 12 months. That is not something about which one can do anything in retrospect. For the future, at least, and given there had been during this trial many matters which indicate late preparation on the Crown's part, whilst I am prepared to accede to the proposition the parties put to me, it should be very very clear that any additional matter of evidence will have to be notified so that the defence can meet it and the matter be ready to proceed in all respects on the next occasion. 23 It will be a matter for the List Judge as to whether I am the trial judge or not and a matter for the exigencies of the list, but I note counsel's submissions in that regard. It is a matter of considerable regret that in these circumstances this trial must at this time, if justice is to be done to the Crown and the defence, notwithstanding the Prosecution's lassitude to date, be aborted, but this court sits to make sure that the case that might lawfully be put forward and that a party wishes to put forward may be heard. Even though evidence in support of that case should not be notified in a timely way if the prejudice can be cured, then a party should not be denied an opportunity to put forward what may be crucial to a just determination of the matter. 24 I will therefore order, noting the undertaking given by the Crown which has been set out in the transcript, that the jury be discharged, that the trial be adjourned and that the matter be placed back in the callover list on the next callover occasion. I make those orders. The exhibits may be returned. 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