R v White & ors (No 4) [2012] NSWSC 468

Supreme Court New South Wales

Medium Neutral Citation: R v White & ors (No 4) [2012] NSWSC 468 Hearing dates: 28 March 2012 Decision date: 28 March 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application to discharge jury refused Catchwords: CRIMINAL LAW - practice and procedure - prosecution duty of disclosure - transcript of interview of proposed witness not disclosed until midway through trial - whether previous cross-examination of other witness affected - whether irredeemable prejudice Category: Procedural and other rulings Parties: Regina Rodney Boyd White Representation: Mr J McLennan (Crown) Mr P Bodor QC (Accused) Solicitor for Public Prosecutions Gregory J Goold File Number(s): 2009/203701

Judgment 1HIS HONOUR: An issue in this trial is a contention by the Crown that the accused White was in possession of a substantial quantity of drugs after the robbery and murder of the deceased. It is the Crown case that the deceased was killed in the course of a drug "rip off". 2This morning, Mr Bodor QC on behalf of the accused White made an application for the discharge of the jury. He indicated that this related to him having been informed yesterday that the Crown was to call to give evidence one Wayne Hedley. Mr Bodor indicated that he enquired of the Crown Prosecutor why that witness was being called, he being of the view that there was nothing significant in his evidence, whereupon he was informed that, in the Crown's view, the evidence was of significance. 3The Crown Prosecutor opened on the evidence of Mr Hedley but Mr Bodor said that it did not dawn on him what the evidence was or what significance it had. 4Yesterday Mr Bodor was provided with a copy of the transcript of an interview by police with Mr Hedley on 1 March 2010 and this morning he was provided with a recording of that interview. The actual recording is said to be significant because it appears that Mr Hedley demonstrated physically to the police in that interview the size of packages of drugs that he said that he saw Mr White in possession of. 5Mr Hedley had also made a statement to the police on a previous occasion, that is on 12 March 2009, which was largely a non-event; it was not a complete and truthful account. Mr Bodor was in possession of that statement, prior to the trial as I understand it, but I accept that, looking at that statement, there was little need for defence representatives to be concerned about the evidence within it. 6It was submitted that Mr Hedley's evidence as disclosed in the subsequent interview of 1 March 2010 was somewhat consistent and somewhat inconsistent with the evidence of Mr Peter Elefsen, which is already before the jury, as to drugs which he claimed were in the accused White's possession, both in terms of quantity and packaging. 7It was submitted by Mr Bodor that he would have given different advice, and the instructions he received in response may have been different, if he had been aware of the evidence disclosed in the 1 March 2010 interview of Mr Hedley. As a consequence, this may have resulted in Mr Bodor taking an entirely different approach in the cross-examination of Mr Elefsen. 8Mr Bodor is in a difficult position in that his instructing solicitor is not present here in Lismore. Mr Bodor has the assistance of a clerk from his solicitor's firm. Mr Goold, who is the solicitor, is arranging to attend and it is proposed that he and counsel will attend upon Mr White at Grafton gaol on the weekend to provide advice and obtain instructions in relation to Mr Hedley's evidence. 9Mr Elefsen is required for further cross-examination by Mr Bodor in relation to other matters. As I understand the position, there would be some embarrassment if it were also necessary to further cross-examine Mr Elefsen in relation to drugs that he claimed were in Mr White's possession in a manner that was different to the cross-examination that had already been conducted. The cross-examination to date has generally been to the effect of suggesting that Mr Elefsen was wrong in his claims as to the quantity and the packaging of drugs that were in the accused White's possession. It was suggested, speaking generally, that the quantity was dramatically less than Mr Elefsen had asserted. 10The submission was made that there is now prejudice in making, on behalf of the accused White, a coherent attack on the prosecution evidence as to Mr White's possession of drugs. 11Finally, it was submitted that, whilst this is day 13 of the trial, not every day has been fully utilised and the actual sitting time is more in the order of six days and if the trial were to restart, having had the experience of the evidence to date, the cross-examination might be more efficient and even less time would be required. In effect, as I understand the submission, it was being put that there was no great loss of time and utilisation of resources if the application was to be granted and the trial was to restart. 12For the Crown, it was said that there was no dispute as to the significance of Mr Hedley's evidence in the way that Mr Bodor had described it. The Crown Prosecutor submitted that Mr Hedley's evidence ties in with that of Mr Elefsen and also, to a lesser degree of significance, with evidence given by Mr Alan Waters. The Crown submitted that it is important evidence in going to the motive for the robbery and killing of the deceased. It was also said to be significant that apparently Mr Hedley, Mr Elefsen and Mr Waters did not know each other and they each give evidence about drugs in the possession of Mr White. 13The Crown Prosecutor indicated that it was solely because of oversight that the transcript of Mr Hedley's interview on 1 March 2010 was not served until yesterday, but he pointed to the fact that the prosecution brief is in excess of three and a half thousand pages contained in about 17 folders, and that to some degree explains how such an oversight could occur. 14The Crown served an index to the prosecution brief on the defence solicitors on 24 February 2012, including a reference to Mr Hedley's interview, apparently as a precaution to ensure that the defence representatives would check that they were in possession of everything within the prosecution brief. So it was suggested that whilst there was error in not serving the transcript of Mr Hedley's interview, the blame was not entirely with the prosecution. I interpolate at this point that I am not concerned with any matter of blame. The primary issue is, as I indicated during the course of submissions, the significance of the proposed evidence of Mr Hedley. 15As to Mr White's instructions, it was the Crown Prosecutor's submission that it was Mr White's choice as to what instructions he gave. In effect, it was suggested that the instructions he gave should not be dependent upon what he thinks the evidence for the Crown would be. I interpolate the observation at this point that the instructions that are provided by an accused to his legal representatives are often given in the light of advice given by counsel and that counsel can only give advice based upon his or her understanding of the case for the Crown, and that is, as I understand it, the position suggested by Mr Bodor. 16The Crown indicated that Mr Hedley would not be called before next Monday, which would allow time for Mr White to consult with his legal representatives and to provide instructions. 17Mr Elefsen is available for recall and Mr Waters will be made available for recall if required. 18Mr Walmsley SC for the co-accused Serone opposed the application. He made some observations about the impact upon his client having to restart the trial, which I note. He also suggested that Mr Bodor has five days to deal with the problems that he has ventilated. Mr Walmsley made the observation that at this point they are only put in terms of being potential problems. 19The statement and the interview of Mr Hedley are exhibits 1 and 2 on the application. I have taken the time this morning to read them. In the statement of 12 March 2009 there is no mention at all of Mr Hedley seeing the accused White in possession of any drugs and there is no mention of a number of other events which are later disclosed in the 1 March 2010 interview. Mr Hedley explained in the interview that he did not disclose everything in the statement out of fear of retribution. He claimed to be providing a full and accurate account of evidence he was able to give in the interview. 20The interview includes an account of seeing Mr White in possession of, and using, drugs at Mr Elefsen's home; on that occasion the drugs were sourced from what he described as a little plastic bag. But on a subsequent day, I think it was suggested to be 20 December 2008, Mr Hedley said that he drove the accused White to Tamworth and dropped him off at a friend's place and there at that friend's place he saw Mr White in possession of drugs. He described seeing a "big, flat, brick-type compressed thing", (question 115). He described, "Kilo packages" (question 222). He said there were "two of them", (questions 223 and 227). He said, "They were wrapped in clear plastic," (question 224), and he later reiterated that there were "two one kilo packages", (question 348). That evidence is not entirely consistent, but is broadly so, with the evidence of Mr Elefsen. 21The index that the Crown sent to the defence representatives prior to the trial included reference, not only to Mr Hedley's statement but to his interview as well. The page numbering that was included in that index would have made it apparent to a careful reader of the document that the transcript of the interview was lengthy. It is, in fact, 56 pages. 22The Crown Prosecutor opened on the evidence of Mr Hedley in these terms, and I quote from page 43 of the transcript. After referring to Mr Hedley giving the accused White a lift to a friend's place in Tamworth, he said: "While at those premises having a cup of tea, Mr Hedley saw the accused was in possession of two packages. He described those packages as being similar to bricks. Hedley in fact says they looked like the normal drug packages that you see on TV. The accused White offered Hedley something from one of the packages, that is something Hedley described as a crystal sort of stuff in the bottom of a plastic sandwich bag. Mr Hedley refused the offer of the crystalline substance and after about half an hour Mr Hedley left." 23That, clearly, is material sourced not from the initial statement made by Mr Hedley but from the 1 March 2010 interview. It is, with respect, difficult to see how that could not be regarded as evidence of some significance. It is evidence similar to that which was anticipated to be given by Mr Elefsen. 24This is not a case of completely new material being disclosed by the Crown midway through the trial. It is disclosure of evidence that is, in practical terms, the same as that which has already been led before the jury. It is simply that the same type of evidence is coming from an additional source. 25The existence of the evidence was implicitly disclosed by a service of the index to the brief. It was explicitly disclosed in the Crown's opening address. Whether it will, in reality, have any prejudicial impact upon the presentation of the case for the accused White is, in my view, at the moment speculative. 26I am not persuaded that sufficient prejudice has been established to warrant discharging the jury. 27The application is refused.