R v JM (No 3)

HIS HONOUR: The trial in this matter is to commence today. Objection has been taken to a video proposed to be played by the Crown as part of its case. The video, I am told, is a file taken from the accused's phone as a result of a Cellebrite examination. Objection is taken by the accused on the basis of s 146 of the Criminal Procedure Act 1986 (NSW). Section 146(1) provides that the Court may refuse to admit evidence in proceedings that is sought to be adduced by a party if that party failed to disclose the evidence to the other party in accordance with the requirements for pre-trial disclosure imposed by or under this Division. The accused's counsel informs me, and I accept, that he became aware of the particular video some time around 9.30 this morning, including not only its existence but the Crown's intention to play it.

The Cellebrite examination of the accused's phone was, I am told, provided to the accused on a USB stick at the request of the accused. Examination of that USB stick by the accused's representatives revealed details of calls and call logs. I am told that there was a section of the device labelled data, or data files, in which there were a number of thumbnails, which were otherwise not able to be accessed. No issue has been taken by the Crown to suggest that those files were readily accessible. The argument has proceeded on the basis that whilst the USB was provided, the particular files were not readily accessible. The provision of that USB stick and associated Cellebrite examination, as I have indicated, was provided at the request of the accused, essentially, by way of disclosure by the Crown. It was not suggested to have been served for the purposes of indicating what was intended to be led as part of the Crown case against the accused.

In other words, even if one accepts that the accused was able to access the material and was relevantly in possession of it, that does not alter the background understanding that it was not understood by the accused that this would form a part of the Crown case against him. This is particularly so in the context of ongoing preparations to the matter. I have been informed and understand that both Crown and accused counsel have been engaged in numerous discussions in relation to the conduct of the trial and the manner in which evidence would be adduced throughout the course of lead-up of this matter across the various mentions. I am grateful to both parties for the approach they have taken in terms of communicating with each other so that the trial can proceed smoothly.

Relevant for the purposes of this issue is that, throughout those discussions, and as recently as an email of 15 May 2024, while there have been numerous references to material to be led through the officer-in-charge, there has been no reference to the playing of this particular material. That is so, despite the accused having indicated, through his counsel, his intention to cross-examine the officer-in-charge with respect to aspects of the Cellebrite examination. It is in that context that counsel to the accused indicated that he was, in essence, somewhat surprised to learn this morning, the first day of the trial, that there was to be something further to be played from that USB and that being a video which he had not previously seen.

The video itself was not played for the purposes of the application. I am told that it shows a person stabbing the tyre of a car belonging to Joel. Joel is the brother of Julia. Julia is the former partner of the accused and was, at the time of his death, the partner of the deceased. It appears uncontentious that there was a significant animosity between the accused and the deceased around the time of the stabbing leading to the deceased's death. It appears, as I understand it, uncontentious that significant part of that animosity related to the circumstance to which I have referred - that is, the relationships between Julia and the accused and deceased respectively.

The video, I am told, is such that it can be inferred that it was taken by the person who engaged in the act of stabbing the tyres. Given that it is on the accused's phone, there is an inference that it shows the accused doing so. The Crown submits that it is relevant to provide further background with respect to the issues as between the deceased and the accused and in that context potentially informs issues with respect to the accused's state of mind relevant to, at least, the issue of self-defence.

Tendered on the voir dire were statements of Joel, Noah and a transcript of a recording of the immediate precursor to the stabbing resulting in the death of the deceased. It would appear, from that material, that there is further evidence it was the accused stabbing the tyres of Joel. Joel recognised damage to his car in the form of graffiti as being the work of the accused. That, on its face, may sound surprising, except that the particular graffiti is in the nature of "tags". I can accept that there may be a relatively specific or signature-like quality to such acts of damage. The statement of Noah indicates that he can give evidence of viewing the relevant video and further, that when he asked the accused, who had shown him the video, as to why he had stabbed the tyres and damaged the car, the accused revealed that Joel had made a threat to the accused, which Noah interpreted as being Joel motioning to the accused in a shooting-like motion.

On the Crown case, the damage to Joel's vehicle was known to the deceased at the time immediately prior to him being stabbed. The transcript tendered records the deceased saying words transcribed as: "Did you tell them what you did the other night? Let's go." On the Crown case, the reference to what (the accused) did the other night was to the stabbing of the tyres. The video is timestamped on the accused's phone as having occurred in the early hours of the morning on 28 May and the stabbing of the deceased leading to his death occurred on the afternoon of 29 May.

The analysis to which I have referred raises questions to really what is added to the Crown case by the tendering of the video. I can accept that it is certainly relevant, and thus adds something to the Crown case. That said, the provisions in relation to disclosure are important. Particularly in the context of electronic evidence, which can be of significant volume and require significant resources to examine, it is important that disclosure proceed on the basis that if there is electronic material upon which the Crown wishes to rely, that the Crown properly disclose that material to an accused person so that they can understand it and meet that case. The alternative, that is an accused proceeding on the basis that it is necessary to examine all aspects of potentially voluminous electronic material, is unsatisfactory. In particular, it has the potential to require the exhaustion of resources that an accused person simply may not have.

In the circumstances and noting there does seem to be significant evidence already available to the Crown with respect to the issue sought to be raised, I am of the view that the evidence should not be admitted and the evidence is excluded.