R v Fitzpatrick (No 5) [2019] NSWSC 976

Supreme Court New South Wales

Medium Neutral Citation: R v Fitzpatrick (No 5) [2019] NSWSC 976 Hearing dates: 1; 2; 3; 4; 5; 8; 9; 10 July 2019 Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Common Law Before: Campbell J Decision: Refuse application to discharge jury Catchwords: CRIMINAL PROCEDURE – Application to discharge jury – Non-disclosure of additional report of expert – report helpful to accused – whether non-disclosure vitiated pretrial ruling concerning admissibility of "bomb-making material" – innocent but unsatisfactory explanation for non-disclosure – no question of principle – no real risk of miscarriage by reason of non-disclosure Legislation Cited: Evidence Act 1995 (NSW), s 137 Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; R v Fitzpatrick (No 2) [2019] NSWSC 836 Category: Procedural and other rulings Parties: Regina (Crown) Paul John Fitzpatrick (Accused) Representation: Counsel: J. Tunks (Crown) D. Price (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Conaghan Lawyers (Accused) File Number(s): 2017/376874

Judgment 1. The day has been taken up with proceedings relevant to what became an application on behalf of the accused, Mr Fitzpatrick, to discharge the jury. The ground for discharge relates to the non-disclosure of an expert certificate by Mr Peter Ballard, a senior forensic chemist in the Chemical Criminalistics Unit, dated 3 November 2016. 2. That certificate is relevant to evidence the subject of my pre-trial ruling in R v Fitzpatrick (No 2) [2019] NSWSC 836. Part of that decision relates to material constituting exhibit voir dire 1. That material consists of three documents which have been referred to, at least today, as the "bomb-making material". That material has now found its way into evidence and as Exhibits BQ, BR and BS respectively. 3. These reasons assume some familiarity with the reasons for my earlier ruling upon the admissibility of that material.