District Court New South Wales Medium Neutral Citation: R v Loyd Bandao and James Bruce [2017] NSWDC 98 Hearing dates: 23 March 2017 Decision date: 23 March 2017 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Expert evidence from pharmacologist may be admitted into evidence in the Crown's case Catchwords: Non- compliance by Crown with pre-trial disclosure requirements - sanctions Legislation Cited: Division 3 of Part 3 of the Criminal Procedure Act, Criminal Procedure Act 1986 (NSW) ss 130, 141, 142, 146. Cases Cited: R v Ludeke [2016] NSWDC 57 Category: Procedural and other rulings Parties: Regina (Crown) Loyd Bandao and James Bruce (Accuseds) Representation: Counsel: Mr Paish (Crown Prosecutor) Mr Lawrence (Accused Bandao) Mr Trevallion (Accused Bruce) File Number(s): 2015/186808 and 2015/183753 Publication restriction: Non- Publication order made of the complainant's name and of any other fact or thing that may identify the complainant Judgment 1. As long ago as 9 June 2016, this joint trial of Loyd Bandao and James Bruce was fixed for hearing on 20 March 2017. 2. The trial fixed for hearing on that date was subject to the provisions of Division 3 of Part 3 of the Criminal Procedure Act. That Division is concerned with, amongst other things, case management. Its purpose is to reduce delays in proceedings on indictment. 3. Sections 141 and 142 of the Criminal Procedure Act and District Court Practice Note 9, amongst other things, require the prosecution to give notice of the prosecution case no later than three weeks before the date set for trial. Section 146 of that Act provides for sanctions for non compliance with pre trial disclosure requirements. Those sanctions apply to both the prosecution and the defence. 4. One of the sanctions specifically provided for is that the Court may refuse to admit evidence sought to be adduced by a party who failed to disclose that evidence to the other party in accordance with required pre trial disclosure. 5. As an alternative to refusing to admit non disclosed evidence, the Court may grant an adjournment if the failure to disclose causes prejudice to the party seeking the adjournment. 6. The trials of Mr Bandao and Mr Bruce did commence on Monday 20 March 2017, and after a Basha inquiry, a jury was empanelled. Regrettably, that jury had to be discharged in circumstances not necessary to further refer to. A second jury has been empanelled and that trial is under way. 7. Presently before the Court is a notice of motion dated 20 March 2017. (In saying that a motion is "before the Court", I am to be understood as therefore granting leave for it to be filed over the objection of the Crown). 8. The notice of motion seeks the exclusion of the evidence of an expert, Mr John Farrer. 9. The motion calls in aid ss 130 and 146 of the Criminal Procedure Act. 10. The motion is filed on behalf of Mr Bruce but, as I have understood it, Mr Bandao also seeks the benefit of the relief sought in it. 11. The motion relies upon observations and rulings which I made in the published but little read judgment of R v Ludeke [2016] NSWDC 57. Importantly in that case it should be noted that, following the delivery of the judgment, a short adjournment was granted to the Crown to consider whether or not it showed sufficient error as to justify a s 5F application (cf. Criminal Appeal Act). Not such application was made. 12. The facts in Ludeke are not remarkably different from the facts underpinning the current notice of motion. 13. The facts in relation to the current motion are relatively uncontroversial. It would seem from the affidavit filed in support of the motion, that the expert (Mr Farrar) was not retained to prepare an expert report before 10 March 2017. He ultimately prepared a report dated 14 March 2017 which was served on the solicitors for Mr Bruce (and presumably Mr Bandao) on 15 March 2017. That late service was in breach of the pre-trial disclosure requirements. 14. There is, however, a significant factual difference between what occurred in Ludeke and what has occurred in this trial - and that is that the solicitors for both Mr Bandao and Mr Bruce have been able to obtain sufficient instructions and advice from their own experts as to be able to meet the Crown's late served material. 15. Neither Mr Bandao nor Mr Bruce now allege that the non-compliance with the pre-trial disclosure requirements has actually resulted in prejudice to them. I would pause to observe that if I had formed the opinion that real and meaningful prejudice had been sustained I would have excluded the evidence, rather than adjourning the hearing to another date, for the very simple reason that one of the accused is bail refused and no further hearing date could be fixed within the next 15 months given the state of the Court's lists. 16. Because the accused are able to meet the late served material, I am not persuaded that it is in the interests of justice to exclude that evidence for that reason alone. 17. Accordingly the notice of motion dated 20 March 2017 is dismissed. Amendments 09 May 2017 - Amendment made 9 May 2017: Mr Paish (Trial Advocate) change to (Crown Prosecutor) 09 May 2017 - Paragraph (7) - "notion" replaced with "notice" 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: 09 May 2017