Edwards v The Queen [2021] HCA 28

Edwards v The Queen [2021] HCA 28 · Read the judgment on AustLII

Catchwords: Pre-trial disclosure regime – disclosure generally – prosecutor’s duties

In this decision of the High Court, both judgments make comments favouring the provision of all electronic data to defendants (as distinct from merely telling them that the material exists). But it also serves as a reminder that if there is late disclosure and the defendant does not seek to make use of the sanctions provided for in the legislation, they will subsequently find it difficult to point to imperfect compliance as causing manifest injustice.

The appellant was convicted of a range of sex offences. On appeal to the High Court, he argued that his trial had miscarried because the prosecutor had failed to give his lawyers, in advance of the trial, a hard drive containing information from his mobile phone (‘the download’ or ‘the Cellebrite download’). The pre-trial disclosure obligations in the Criminal Procedure Act (‘the Act’) required the prosecutor to give a copy of, amongst other things, any document that had not otherwise been disclosed to the accused person. The Crown had told the appellant of the existence of the download, but did not serve a copy of it. The appellant’s lawyers only took notice of that fact when they were served with a witness statement on the Friday before trial, and were told that the witness’ details had come from the download. The appellant did not seek any relief from the late service of the statement, such as an adjournment (s 141(3)) or the exclusion of the evidence in the belated statement (s 141(1)). The Court delivered two judgments, both agreeing as to the outcome (which was that there was no miscarriage of justice).

In the judgment of Kiefel CJ, Keane and Gleeson JJ, it was observed that the pre-trial disclosure obligations in the Act are only one of several sources of the prosecutorial duty of disclosure. In addition, there is the question of ‘good prosecutorial practice’. Their Honours considered that it was sufficient to observe here that when a prosecutor is in possession of a Cellebrite download, it would accord with good prosecutorial practice to provide a copy of it to defence (at [23]). No doubt the Crown could have provided a copy of the download cheaply and easily, without waiting for a request from the appellant, and thereby obviated any perception of unfairness. On the other hand, if the appellant gave instructions suggesting inquiries that could have been made by searching his phone, there was no impediment to the appellant calling for the download, because its existence had been clearly identified by the Crown (at [31]).

That said, in summary their Honours considered to be without merit the arguments about how the trial might have gone differently if it had been provided, broadly because even with the benefit of hindsight the appellant could not point to anything that would have affected the cross-examination of the witness (see [28]-[29]). If there was a contravention of the provisions by the late service of the statement, it did not affect the fairness of the trial. Moreover, an adjournment might have been, but was not, sought by the appellant under s146(3) (at [30]).

Edelman and Steward JJ arrived at the same conclusion by a slightly different route. After setting out a potted history of the pre-trial legislative arrangements in NSW (see [48]ff), their Honours held that in Div 3 of the Act the meaning of ‘disclosure’ is a default requirement of providing something unless the thing has no physical existence (at [57] – emphasis in original).

The prosecution’s disclosure obligation extended to the whole of the download, not only to some small part of it. It isn’t stated explicitly in the judgment, but it appears their Honours considered that this obligation to provide the whole of the digital item also extends to other kinds of electronic data held by the Crown (such as recordings), particularly having regard to the fact that the Crown is not required to search the material, nor to conduct the case for the defence (at [65]-[66]).

The Crown had argued that they had complied with their statutory obligations by informing the accused of the existence of the download, such that they had ‘otherwise … disclosed’ it. However, this submission is contrary to the text, context, and purpose of s 142(1)(i) (at [69]). The mandatory pre-trial ‘disclosure’ required by ss141 and 142 cannot possibly be understood as requiring anything less than physical provision of the relevant documents (at [70]). If it were otherwise, the prosecution would be obliged to inform an accused of the existence of a large database repository of information, but not obliged to provide any of that information to the defence prior to trial. The prosecution are not obliged to interrogate any such database in order to determine whether any items in it are relevant to the defence case, so the Crown’s submission would mean that, the larger the field of potential disclosure, the more uncertainty would exist, and the greater the potential for injustice for an accused person (at [72]).

The failure to provide a copy of the download was a breach of the duty in s141(1)(a) of the Act. All that notwithstanding, for reasons to do broadly with the inability of the appellant to identify any practical injustice arising from the failure which was capable of affecting the trial, their Honours still dismissed the appeal (see [74]ff).