R v Kamha, R v Wilkie [2008] NSWSC 950

New South Wales Supreme Court

CITATION : R v Kamha, R v Wilkie [2008] NSWSC 950

HEARING DATE(S) : 7 April 2008

JUDGMENT DATE : 7 April 2008

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

EX TEMPORE JUDGMENT DATE : 7 April 2008

DECISION : Orders made; See par 11

CATCHWORDS : COMPLEX TRIAL - Pre-trial disclosure

LEGISLATION CITED : Criminal Procedure Act 1986

CATEGORY : Procedural and other rulings

REGINA (Commonwealth) - Crown PARTIES : Ashraf KAMHA - Accused Daniel WILKIE - Accused

FILE NUMBER(S) : SC 2007/2620; 2007/2619

A MacSporran SC; M Wigney SC; T Berberian - Crown COUNSEL : R Richter QC; S Hinchey - Accused Kamha L Robberds QC; M Thangaraj - Accused Wilkie

Commonwealth Director of Public Prosecutions - Crown SOLICITORS : Varasso & Associates - Accused Kamha Speed & Stracey - Accused Wilkie

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Monday 7 April 2008

2007/2620001 - REGINA v Ashraf KAMHA 2007/2619001 - REGINA v Daniel WILKIE

JUDGMENT – Notice of Motion

1 HIS HONOUR: There is before the Court a notice of motion seeking orders in accordance with Part 3 Division 3 of the Criminal Procedure Act. There are two accused persons. The orders sought in relation to the accused Daniel Wilkie are not opposed and I have a draft of orders and have indicated that I will make orders in those terms. It is common ground that both accused have already been arraigned. 2 It is necessary for me to find for the purpose of making orders under that division that the Court is satisfied that it is a complex trial having regard to the matters specified in section 136 (2). It is fair to say that Mr Richter, QC and Mr Robberds, QC for the respective accused do not suggest that this is not a complex trial within the meaning of the provision. The material in the affidavit of Fiona Gayler clearly demonstrates the correctness of those concessions and accordingly I find that this is a complex criminal trial. 3 As a result of helpful exchanges with Mr Wigney, QC for the prosecution and Mr Richter it can be seen that the dispute reduces to a question as to whether or not the response by the accused Kamha should be limited and in particular limited to those matters set out in section 139 (2) (a), (e) and (g). The dispute focuses upon whether there should also be included subsections (c) and (f). 4 The terms of subsection (c) are that the response should include notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor. Mr Richter argues that this is in effect subsumed by subsection (e) which requires notice as to whether the accused person proposes to dispute the accuracy or admissibility of any proposed documentary evidence or other exhibit disclosed by the prosecutor. He therefore argues that it is otiose to make an order including both these subsections. 5 If that submission is to be accepted one would have thought it was of uniform application that therefore there was no basis for discrimination. It seemed to me that it is clear that the legislature has perceived a basis for discrimination. It is true that the making of an order may impose burdens upon the accused person but it is plain in my view that the legislation recognises implicitly that there will be, contrary to the ordinary common law, the imposition of burdens upon accused persons in complex trials to make responses in its terms. 6 I see no reason why subsection (c) should be excluded by way of limitation. It is contended that an onus lies upon the prosecution to demonstrate the need for it. It seems to me that I am not in a position to make a judgment about matters which are not the subject of specification at this stage. The question is whether it is reasonable in the circumstances to make such an order and I propose so to do. 7 That moves me to then consider whether an order should be made in accordance with subsection (2) (f). That requires the accused person to give notice as to whether he proposes to dispute the admissibility of any other proposed evidence disclosed by the prosecutor and the basis for the objection. 8 Mr Richter points out that a very large number of witness statements have been served already upon his client. In the affidavit of Ms Gayler there is a prediction that some fifty witnesses may be called. Without my going to any detail of the statements, which I indicate I have not seen, I am prepared to accept for present purposes that those statements would on many occasions in a case such as this include material which may be first or second-hand hearsay. 9 Mr Richter's position is that he contends that it is appropriate for the prosecution to indicate what prima facie inadmissible material contained in such statements he intends to rely upon and he therefore, and those assisting him, be relieved of the burden of having to, in effect, glean the statements of prima facie inadmissible material and give indications as to the basis of objection of each and every one of them. 10 I recognise that this would appear to be a very burdensome task. Nevertheless, in a case such as this it is inevitable that an accused person has a more detailed knowledge of matters which he wishes to dispute about what the prosecution indicates by way of disclosed material that it is setting out to prove. On balance, I regard the terms of subsection (f) as not so onerous as to require a special limiting order. When I say special, I am not indicating thereby that there is any onus upon the accused to show special circumstances exist before such an order is made. 11 I would therefore be inclined to make an order that the respondent give notice to the applicant and the defence response to the case for the prosecution in accordance with sections 139 (1) (b) and (1) (d) and the requirement pursuant to section 139 (1) (d) be limited to those matters set out in subsection (2) (a), (c), (e) (f) and (g). **********