Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy (No 2) [2014] NSWSC 1288 Hearing dates: 31 July 2014 Decision date: 31 July 2014 Before: Button J Decision: I reject the tender of the document on the motion. Catchwords: CRIMINAL LAW – evidence – tender of documentary evidence – accurate copy not provided to other party – accurate working copy not available – whether tender should be accepted Category: Procedural and other rulings Parties: Regina Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: DJ Fagan SC (Crown) P McGuire (Crown) P Strickland SC (McCarthy) P Bruckner (McCarthy) DKL Raphael (Seller) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (McCarthy) Gibson Lawyers (Seller) File Number(s): 2009/237556 2009/237509 EX TEMPORE Judgment 1. In the complex circumstances of this case, I consider that to tender a document without an accurate copy having been provided to the opponent for his consideration as to its admissibility and other matters denies that opponent procedural fairness. 2. I also consider that, in the absence of an accurate working copy, which I have respectfully repeatedly requested, I am unable to fulfil properly my role as the tribunal of fact on the motion, in light of the plethora of documents, evidence, and legal issues that I will be required to assess and resolve. 3. I note that the motion was originally listed for three days and is now in its fourth. Yesterday, the proceedings ground to a halt because of the logistical difficulties experienced by the legal team for Mr McCarthy. Without the need for any persuasion, I granted, in effect, an adjournment of a full day, and by that I mean almost 24 hours, to permit those logistical difficulties to be overcome. 4. At 10am this morning, when it became apparent that my simple request for three identical folders with regard to each documentary exhibit was still not able to be complied with, I indicated that I would grant a further adjournment of one hour, but no more. Senior counsel for Mr McCarthy expressly agreed with that way forward. 5. It seems that proposed Exhibit 11, namely, exhibit PH15 volume 5, does not comply with my request. In particular, the copy that has been provided to senior counsel for the Crown is not identical to the copy that is proposed to be tendered. I consider that the tendered document denies procedural fairness to the Crown. I reject its tender on the motion. 6. It goes without saying that if, before the close of the documentary evidence, a proposed tender document can be "whipped into shape" (if I may use that expression), and if it can comply with my request with regard to procedural fairness, and with my request with regard to me properly fulfilling my role as the tribunal of fact, there can be a further application for it to be tendered. ********** 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. Decision last updated: 24 September 2015