Reported Decision : (2003) 56 NSWLR 652 New South Wales Supreme Court CITATION : Regina v Monroe [2003] NSWSC 55 revised - 18/03/2003 HEARING DATE(S) : 12/02/03 JUDGMENT DATE : 14 February 2003 JUDGMENT OF : O'Keefe J DECISION : 1. The prosecuting authority is to serve on the solicitor for the accused copies of all medical reports obtained by the Crown that are relevant to the case, such service to be effected by 12 noon on 17 February 2003. 2. The prosecuting authority is to serve on the solicitor for the accused copies of any further medical reports hereafter obtained by the Crown that are relevant to the case, such service to be effected within 24 hours of receipt of such reports. 3. The accused is to serve on the solicitor for the prosecuting authority any reports of Professor Whitwell that he has obtained, such service to be effected by 4pm on 17 February 2003. 4. The accused is to serve on the solicitor for the prosecuting authority any reports hereafter obtained on his behalf from any expert medical practitioner proposed to be relied upon by the accused, such service to be effected within 48 hours of receipt of any such reports. 5. Service as required by paragraphs 1, 2, 3 and 4 of this order may be effected by facsimile to the solicitor for the relevant party. 6. Liberty to apply on three days notice. CATCHWORDS : Criminal law - Criminal trial - Pre-trial disclosure - Complex criminal trial - Procedure - Complex medical evidence - Criteria for complex criminal trial - Words and phrases: "and" - "or" - "having regard to" - "includes" - "is to" - Compound verb "is to" has mandatory effect - Ambush - Discretion - Moulding order - Case by case approach Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (No. 7 of 2001) Criminal Procedure Act 1986: Div 2A, ss 47A, 47C, 47I Supreme Court Practice Note No. 98 ((1998) 43 NSWLR 525 LEGISLATION CITED : Obscene and Indecent Publications Act 1901 (NSW) Bankruptcy Act 1966 (Cth) Police Offences Act 1928 -1954 (Vic) Licensing Ordinance 1939-1967 (NT) Social Welfare Ordinance 1964 (NT) Associated Newspapers Limited v Wavish (1956) 96 CLR 526 Regina v Neville (1966) 83 WN (Pt 1) (NSW) 501 Wavish v Associated Newspapers Ltd (1959) VR 57 Re The Licensing Ordinance (1968) 13 FLR 143 CASES CITED : Gillespie v Ford (1978) 19 ALR 102 Re Kotses (1995) 132 ALR 409 Regina v Nguyen; Regina v Nguyen [2002] NSWSC 1254 (18 April 2002, unreported) DPP v Sinton [2000] NSWSC 473 (31 May 2000, unreported) Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 PARTIES : Regina James Stewart Monroe FILE NUMBER(S) : SC 70054/02 COUNSEL : Crown - Mr R Herps Accused - Mr R Hoenig SOLICITORS : Crown - Ms L Viney (DPP) Accused - Ms K Robinson (Legal Aid Commission of NSW) - 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST O'KEEFE J 14 February 2002 70054/02 Regina v Monroe JUDGMENT on application for pre-trial disclosure. Introduction 1 Application has been made by the Crown for orders under the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (No. 7 of 2001) in relation to expert medical reports obtained or to be obtained on behalf of James Stewart Monroe (the accused) for use by him in the criminal trial referred to below. 2 The accused has been charged with the manslaughter of his three month old son on 1 September 2000. The baby was admitted to hospital on 28 August 2000. He was found to have sustained brain damage consisting of subdural haemorrhages/haematomata, together with retinal haemorrhages and some minor bruising. The baby died on 1 September 2000 as a result of the subdural haemorrhages/haematomata. His injuries were not such as to have been inflicted by his head having been struck against a surface or by a blunt instrument. The Crown case is that the injuries were acceleration/deceleration injuries caused by the baby having been violently shaken by the accused. 3 It is common ground that: (a) the baby was left by his mother with the accused in the family accommodation; (b) at the time the baby was left with the accused it was healthy and had not sustained any injuries; (c) with the exception of a two year old child, no-one other than the accused and the baby was present in the family accommodation at material times; 4 The Crown proposes to rely on evidence from five medical specialists and two doctors from the Department of Forensic Medicine. The reports prepared by all these medical practitioners have been served on the solicitors for the accused. 5 The Court was informed that the principal (perhaps the only real) issue in the trial will be that of causation. Whether there is a reasonable possibility that the death of the deceased baby was not caused by the accused will depend on the medical evidence. 6 The opinions in the medical reports on which the Crown will rely are unanimous in linking the death of the baby to a violent shaking. However the accused has obtained a report from Professor Whitwell, a neurophysician in the United Kingdom that apparently puts in issue the causation of the death of the baby. Access to the report prepared by such expert is sought by the Crown. 7 The Court was informed by counsel for the accused that whilst Professor Whitwell is expert in the fields of neurology, neuropathology and associated matters, she is not expert in the field of ophthalmology. An opinion from an expert in that field is necessary because of the retinal haemorrhages found. As a consequence, the accused has sought a report from an expert in ophthalmology, Dr Gillian Adams. She resides in the United Kingdom. Dr Adams' report is not yet to hand, but it is anticipated that it will be available shortly, and in any event before the date fixed for the trial of the matter – namely 3 March 2003. The Crown also seeks access to her report when it becomes available. 8 The prosecution of the accused was originally scheduled to take place in the District Court, to which the accused had been committed for trial. However on 5 February 2002 the Chief Justice exempted the trial of the accused from the operation of the direction contained in clause 1 of such Practice Note No. 98 (1998) 43 NSWLR 525 in accordance with the provisions of s 52(2) of the Criminal Procedure Act 1986 and paragraph 4 of Practice Note No. 98. 9 Paragraph 4 of Practice Note 98 requires that an application for exemption should set out "the basis upon which it is claimed that it is an appropriate case to be tried in the Supreme Court" and provides that "(m)atters that involve particular difficulty … or in which there is particular public significance, will ordinarily be given an exemption". Exemption was claimed and granted on the application of the Crown because the case "involve(d) particular difficulty and (was) of particular public significance." 10 The evidence in the present application describes the medical evidence proposed to be called at trial as "particularly complex". Applicable Law 11 Under the common law, the rule against self-incrimination extended so as to prevent pre-trial disclosure in criminal cases. The Court did not have power to require an accused person to reveal his or her defence or matters of evidence involved in such defence. In more recent times, the ambit of this general rule has been reduced: eg in relation to alibi evidence. In 2001, a more general reduction in the ambit of the common law rule was effected by the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (the Act). That Act inserted Division 2A into the Criminal Procedure Act 1986. The purpose of the amendment was to enable the Court on a case-by-case basis to impose pre-trial disclosure requirements on both the prosecution and the defence in order to reduce delays in complex criminal trials (s 47A). 12 Where an indictment has been presented in a criminal proceeding to which Division 2A of the Act applies, the Court is empowered to order the prosecuting authority and the accused person to undertake pre-trial disclosure (s 47C(1)). This may be done on application of any of the parties or on the Court's own initiative (s 47C(3)). However there are limitations on the power of the Court to make such an order. These are set out in s 47C(2) and (4). Section 47C(2) provides: "The Court may order pre-trial disclosure only if the Court is satisfied that there will be a complex criminal trial having regard to: (a) the likely length of the trial, and (b) the nature of the evidence to be adduced at the trial, and (c) the legal issues likely to arise at the trial." In essence, this provision is a gateway that must be passed through before the Court can exercise the power conferred by s 47C. Before doing so, the Court must be satisfied that the criminal proceeding in question is a complex criminal trial. 13 In determining what constitutes a complex criminal trial for the purposes of the Act, it is necessary to consider whether the use of the word "and" in s 47C(2) has the effect of making it necessary for an applicant for an order under the section to satisfy each of the provisions set out in paragraphs (a), (b) and (c) of s 47C(2). 14 In some statutory provisions, the word "and" may have the effect of "or". Whether it does or not is a matter of construction that will depend on the form, context and purpose of the statutory provision. For example, there may be a list of items that are joined by "and" in a statutory provision in which the list itself may be governed or affected by words which show that the various items in the list are really alternatives. 15 In Associated Newspapers Limited v Wavish (1956) 96 CLR 526, the High Court considered a definition of the word "obscene" in s 169 of the Victorian Police Offences Act 1928-1954. Section 169(1) of that Act defined obscene in the following manner: "Obscene … includes: (a) tending to deprave and corrupt persons whose minds are open to immoral influences; and (b) unduly emphasising matters of sex, crimes of violence, gross cruelty or horror." The High Court (Dixon CJ, Williams, Webb, Fullagar and Taylor JJ) said: "We are of opinion that the word 'and' does not mean that what is stated in pars. (a) and (b) provides cumulative conditions which must be both fulfilled before an article can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b)." (supra at 528) The effect of this decision is that the two paragraphs in the definition were read as alternatives, or "dispersively" as was said in some later cases. 16 The Victorian legislation also contained a provision that: "(2) In determining for the purposes of this Part whether any article is obscene, the Court shall have regard to - (a) the nature of the article; and (b) the persons, classes of persons and age-groups to or amongst whom it was or was intended or was likely to be published, distributed, sold, exhibited, given or delivered; and (c) the tendency of the article to deprave or corrupt any such persons, class of persons or age-group…" In respect of this provision, the High Court said that: "…in arriving at a conclusion as to the character of a particular article … the tribunal must ... have regard to the matters that are stated in pars. (a), (b) and (c) of sub-s (2). That is to say, those are considerations which must be taken into account in determining the issue which arises under par. (a) or par. (b) of the definition of the word obscene… It is evident that there will be cases in which the assistance obtained by having regard to the considerations in sub-s (2) will be small, and others in which it will be decisive." (supra at 528) The words in s 169(2) were thus read as requiring the tribunal which made the determination to have regard to those matters, but not to exclude an article from being obscene if it did not satisfy the requirements of each of its paragraphs (a), (b) and (c). 17 There are differences between the legislation considered by the High Court in Associated Newspapers Limited v Wavish (supra) and the Act. The word "includes" does not appear in the relevant section of the Act. The introductory words in s 47C(2) are "having regard to," a common form of connective words in statutory provisions. 18 In the celebrated case of Regina v Neville (1966) 83 WN (Pt 1) (NSW) 501, the construction of s 3 of the Obscene and Indecent Publications Act 1901 (NSW) was considered. Section 3 of that Act included a provision that: "(3) In determining for the purposes of this Act whether any publication or advertisement is obscene, the Court shall have regard to – (a) the nature of the publication or advertisement; and (b) the persons, classes of persons and age-groups to or amongst whom the publication or advertisement was or was intended or likely to be published, distributed, sold, exhibited, given or delivered; and (c) the tendency of the publication to deprave, corrupt or injure the morals of any such persons, class of persons or age-group." Walsh J (with whose reasons McClemens J agreed) held that in determining whether a publication was obscene, regard must be had to the matters mentioned in s3(3), but that "those matters are not necessarily conclusive" because the question which the Court had to determine was whether the publication was obscene. In arriving at this conclusion he said: "I have been greatly assisted by considering the judgment of Martin J in Wavish v Associated Newspapers Ltd (1959) VR 57, and by the decision and observations of the High Court in the same case, Associated Newspapers Ltd v Wavish (supra). There are some differences in the language and the structure of the provisions there under consideration from those of our Act, but … I do not think that the differences are … significant." (supra at 519-520). 19 Whilst there are some differences between the legislative provisions considered in Regina v Neville (supra) and those under consideration in the present case, there are also a number of similarities which are significant. They include the use of the connective introductory words "having regard to", and the fact that the matters specified in both statutes "are different and not identical" (supra at 318). In my opinion, the similarities support the applicability to the Act of the statements in the High Court referred to in paragraphs 15 and 16 above. 20 In Re The Licensing Ordinance (1968) 13 FLR 143, Blackburn J said that in a case of the kind adverted to in the example in paragraph 14 above: "… the word 'and' which is used to join the items in the list is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives … the word 'and' inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect. A common example is the wording of a statutory definition – for example, 'motor vehicle' includes motor cycles, tractors and trailers' – where the 'and' has a truly cumulative meaning, but dispersive effect is given by the word 'includes'." (supra at 147) 21 To a like effect is the decision of Gillespie v Ford (1978) 19 ALR 102 in which Forster CJ had to consider the Social Welfare Ordinance 1964 (NT), s 17(1) of which provided that: "The administrator, the director and welfare officer … may authorise a person to enter and remain on a reserve." 22 Forster CJ held that any one of the officers referred to in s 17(1) could authorise a person to enter and remain on a reserve, and that it was not necessary for all three to act together for that purpose. He said: "…when the word 'and' is used in circumstances such as those in s 17(1), it has a cumulative meaning but … dispersive effect is given, not by another word like 'includes', but by the general context of the section." (supra at 107) 23 Re Kotses (1995) 132 ALR 409 was concerned with the construction of s 149A(3) of the Bankruptcy Act 1966 (Cth), which is concerned with objections to the discharge of a bankrupt. It provides that: "If the objection is withdrawn or cancelled: (a) the objection is taken never to have been made; and (b) if: (i) the period specified in whichever of subsections 149(2), (3) and (4) applies in relation to the bankrupt has ended; and (ii) no other objection against the discharge of the bankrupt is in effect; and (iii) the bankrupt has not been discharged in accordance with Division 3 the bankrupt is taken to be discharged under section 149 immediately the objection is withdrawn or cancelled." 24 Having considered this provision, von Doussa J concluded that the word "and" as used in s 149(3) was used in the sense of "or". In the course of his deliberations he said: "… the word 'and' is used here in the sense described by Blackburn J in Re Licensing Ordinance (supra) when he said 'and' may have the effect of 'or' in a category of case: 'in which there was a list of items, the items being joined by 'and' and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case the word 'and', which is used to join the items in the list, is truly cumulative; it links the members of a class and its function and is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives.' Here, there are no governing words which indicate that paras (a) and (b) are alternatives, such as appeared in the section of the Police Offences Act 1928 (Vic) considered in Associated Newspapers Ltd v Wavish (supra) (where the dispersive effect was given by the word 'includes'). But the dispersive effect may nevertheless be given by the context in which the section appears, as was the situation in Gillespie v Ford (supra)." (supra at 411) 25 Just as a dispersive effect may be given to provisions linked by the word "and" as a result of the context of such provisions, so too, in my opinion, may such an effect be given as a result of the object or purpose of the legislation in which that word occurs. 26 In his Second Reading Speech in relation to the Criminal Procedure Amendment (Pre-Trial Disclosure) Bill, the Attorney General described the regime to be established by the Bill in the following manner: "The Pre-Trial Disclosure model the Government puts forward is a case management model. It requires hands-on management when the court has applied the regime on its own initiative or when a party to the proceedings successfully seeks to apply the regime … in addition to providing for case-managed pre-trial disclosure, the Bill provides other amendments designed to enhance further the efficiency and fairness of the criminal justice system." (Parliamentary Debates (Hansard) 16 August 2000 at 8288-8289) No particular reference is made in the Second Reading Speech to s 47C. 27 In the present case, the object or purpose of the Act is to reduce delays in complex criminal trials. This is in the public interest. Furthermore, the making of an order under s 47C is discretionary. Recognition can thus be given to the traditional common law rights of an accused person by the way in which such discretion is exercised on a case by case basis. Such considerations favour a reading of the section that is not unduly restrictive. 28 If all of the requirements of s 47C(2) (a), (b) and (c) had to be fulfilled before a criminal trial could be classified as "complex", the ambit of application of s 47C(2) would be significantly reduced. For example, there are many criminal trials that are long and therefore complex, but in which there are no legal issues likely to arise. Similarly, there are criminal trials in which the evidence likely to be adduced will be complicated, technical, difficult to understand, ie complex, but the trial may not be long, nor may it involve legal issues. 29 Having regard to the foregoing authorities and considerations, including the form and purpose of s 47C of the Act, I am of opinion that the word "and" in s 47C(2) should be given an effect the same as that given to that word by the High Court in Associated Newspapers Limited v Wavish (supra). 30 In my opinion, the use of the word "and" in s 47C(2) does not have the effect that the considerations set out in paragraphs (a), (b) and (c) must all be met before a criminal proceeding is a complex criminal trial within the meaning of the Act. It is not necessary for an applicant for an order under s 47C(2) to satisfy each of the provisions of paragraphs (a), (b) and (c). In my opinion it would be sufficient if the criminal trial can be characterised as complex having regard to any of the matters specified in those paragraphs. 31 Section 47D provides for the manner in which "pre-trial disclosure is to be made". For the reasons set out in Regina v Nguyen; Regina v Nguyen [2002] NSWSC 1254 (18 April 2002, unreported) and DPP v Sinton [2000] NSWSC 473 (31 May 2000, unreported), I am of the opinion that the compound verb "is to" has a mandatory connotation in this section. However, the Court has power to waive any of the pre-trial disclosure requirements that apply under Division 2A of the Act (s 47I(1)), may do so of its own initiative (s 47I(2)), and may make an order subject to such conditions as the Court thinks fit (s 47I(3)). Thus, whilst the regime contemplated by s 47D may be regarded as the norm, it may be varied in an appropriate case. Such an approach is consonant with the purpose of the Division 2A, namely to deal with matters on a case-by-case basis, and recognises that the Act brings about a significant change in the common law. However, the restrictions on the power of the Court to order pre-trial disclosure in a complex criminal trial in s 47C(2) and (4) do not fall within the description "pre-trial disclosure requirements" in s 47I(1). 32 For the foregoing reasons, I am of opinion that in a complex criminal trial the Court has power to make and mould orders for pre-trial disclosure in such a way as to meet the objectives of Division 2A of the Criminal Procedure Act 1986 if the nature of the evidence to be adduced at such trial is complex. Analysis 33 The principal issue in the trial will be causation. The evidence that will be at the heart of the trial of the accused will be medical in its nature. It will be concerned with a delicate and complex part of the body. It will involve a combination of neurological and ophthalmological expertise on which there will be a divergence of medical opinion. The number of witnesses dealing with the issue will be quite substantial. These factors, in my opinion, qualify the trial as a complex criminal trial within the meaning of s 47C(2)(b) of the Act. 34 The cross-examination of the medical witnesses will need to be careful and detailed. It will be cross-examination of a type that should not be embarked on without adequate preparation. Such preparation will undoubtedly require counsel on both sides of the record to be advised by their appropriate experts. The accused already has the benefit of the Crown's medical reports. Counsel for the accused is therefore in a position to take advice in advance of the trial and to prepare his cross-examination of the Crown medical experts accordingly. The interests of justice suggest that the Crown should be in no less favourable a position. For the Crown to see expert medical reports that are likely to be detailed and complicated only at the time the medical experts for the defence are called to give evidence smacks of ambush, a problem adverted to in the report of the New South Wales Law Reform Commission on The Right to Silence (Report 95, July 2000), in which the Commission reported that: "One of the most common arguments for introducing defence pre-trial disclosure is that it will address the problems of defendants 'ambushing' the prosecution at trial … leading to the acquittal of guilty persons." (para 3.100) The problem of ambush in criminal trials was also adverted to in the course of the Parliamentary Debates when Her Majesty's Opposition advised of its support for the legislation following its amendment in Committee, and in the course of so doing described the system to be introduced by the Bill as: "A system of pre-trial disclosure that abolishes trial by ambush, which has been an historic legacy, and ensures a more level playing field between the prosecution and the defence." (Parliamentary Debates (Hansard), Vol 283, 3 April 2001, p 13036) 35 The Act was intended to overcome this problem, inter alia. Avoiding such a problem operates in favour of an order being made. 36 Absent an order for pre-trial disclosure, the specialist medical evidence adduced on behalf of the accused would not emerge in the trial until after the Crown case had closed. It is quite likely that on the tender by the accused of his specialist medical evidence, the Crown could seek, and may well be granted, some time to take advice and prepare a cross examination. This would impact on the likely length of the trial, disrupt its smooth flow, at best be a distraction to the jury, and at worst could even result in the trial being aborted. Such considerations militate in favour of the accused's expert medical reports being made available to the Crown in advance of the trial. 37 Arising out of the judgment of Heydon JA (as he then was) in Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705, there could well be substantial objections taken to the medical evidence relied on by the accused. The legal issues rising from such objections could fall within the ambit of s 47C(2)(c). Such objections can be time-consuming, disruptive of the flow of a trial and distracting for a jury. Avoiding them is in the best interest of justice, including the interests of an accused. Again, this consideration militates in favour of the accused's expert medical reports being made available to the Crown in advance of trial. 38 Counsel for the accused has submitted that the Crown may well decide not to proceed with the prosecution of the accused once it has seen the medical reports of the experts retained by the accused. That is a matter for the Crown. However, in the interests of justice, including the proper utilisation of available Court time, it would be preferable if the Crown had the opportunity to consider the relevant expert medical reports before the trial commences, rather than at the conclusion of the Crown case. Although this factor was advanced on behalf of the accused in support of the contention that access to the reports should be denied to the Crown, I am of opinion that it in fact supports such access being given. 39 Other than reliance on the general proposition that the ordering of disclosure would be a derogation from the well established and long standing common law rights of an accused person, no particular reason was advanced to support the contention that access to the reports should be denied. However, that is precisely what the Act gives the court a discretionary power to do. The question in the present case is whether the court should exercise the discretion conferred by s 47C favourably to the Crown. 40 For the reasons I have stated above, I am of opinion that the discretion should be so exercised. Orders I make orders as follows: 1. The prosecuting authority is to serve on the solicitor for the accused copies of all medical reports obtained by the Crown that are relevant to the case, such service to be effected by 12 noon on 17 February 2003. 2. The prosecuting authority is to serve on the solicitor for the accused copies of any further medical reports hereafter obtained by the Crown that are relevant to the case, such service to be effected within 24 hours of receipt of such reports. 3. The accused is to serve on the solicitor for the prosecuting authority any reports of Professor Whitwell that he has obtained, such service to be effected by 4pm on 17 February 2003. 4. The accused is to serve on the solicitor for the prosecuting authority any reports hereafter obtained on his behalf from any expert medical practitioner proposed to be relied upon by the accused, such service to be effected within 48 hours of receipt of any such reports. 5. Service as required by paragraphs 1, 2, 3 and 4 of this order may be effected by facsimile to the solicitor for the relevant party. 6. Liberty to apply on three days notice. ********** Last Modified: 03/18/2003 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.