R v Nancarrow (No 3)

1. [1]

   On Wednesday 9 March 2022, Mr Neild, counsel for the accused, made an application for a discharge of the jury. The application arose because of the potential prejudice, and/or unfairness, occasioned by the cross-examination of Mr Nancarrow by the Crown Prosecutor that morning. I refused the application and indicated I would provide reasons later. These are those reasons.

Summary of evidence regarding the headtorch

1. [2]

   It is necessary to provide a summary of the case of both parties as each relates to the line of cross-examination that provoked the application to discharge the jury.

2. [3]

   It appears to be common ground that the deceased (Paul Donald) and the accused (Shane Nancarrow) had a heated argument about drugs, the details of which are of no present importance, a little while before the confrontation that led to Mr Donald’s death. It is also common ground that each retreated to their respective private spaces within the premises after that argument. Mr Donald slept in a caravan outside while Mr Nancarrow slept in a bedroom upstairs. The layout of the bedroom is depicted in crime scene photographs that are before the jury and which were taken shortly after the incident.

3. [4]

   The prosecution will contend that Mr Nancarrow was lying in his bed upstairs. When he became aware that the deceased had re-entered the main house from his caravan outside, the accused moved to a small kitchen counter and picked up a knife in preparation for possible confrontation with the deceased. This contention, on the prosecution case, is supported by the location of various items that are depicted in photographs. By contrast, the defence case is that the accused was sitting or lying on a lounge or couch, a short distance from the bed which is away from the kitchenette and towards the staircase where the stabbing occurred, and was using a knife to pick under his nails when the deceased entered the house and referred to him (the accused) by name.

4. [5]

   Mr Nancarrow’s evidence is that he had turned all of the lights off in his room to give the impression that he was asleep and to avoid further conflict. His evidence is that the only illumination was a headtorch or headlamp which allowed him to see the area in front of him:

5. [6]

   In his evidence in chief, Mr Nancarrow said, by the time he realised that Mr Donald had returned, the headtorch had been switched off:

6. [7]

   In cross-examination he said:

7. [8]

   Later in cross-examination, the accused was confronted with close-up photographs (or magnified versions of photographs already in evidence) of items on the bed. He agreed that amongst some remote controls and video game controllers, the headtorch was on his bed. However, he maintained his denial that he was lying on his bed at the relevant time. His evidence was that he did not move further than the corner of the lounge to the top of the stairs:

8. [9]

   At this point the Prosecutor sought to tender the images shown to the accused and the application to discharge the jury was made.

9. [10]

   The relevance of the photographs shown to the accused is that they had some capacity to undermine the accused’s version of events and to support the prosecution’s contention that the accused was lying on the bed, rather than on the lounge. This, in turn, might lead the jury to find that the accused’s version was constructed, that his evidence of having the knife in his hand for a benign purpose was untrue, and that he had fetched the knife from the kitchenette for the purpose of confronting the deceased.

10. [11]

    The discharge application was based on the asserted unfairness of the accused being placed in the position where he committed to his version of events in circumstances where there was available to the Prosecution relevant evidence on the issue and where that evidence had not been disclosed to the defence.

Disclosure

1. [12]

   The two photographs objected to, which the prosecutor sought to tender in the above exchange, were marked as Ex VD1(a) and (b) on the voir dire. In terms of disclosure, those photographs fell into somewhat different categories.

2. [13]

   The first photograph was an enlarged or zoomed-in version of a photograph that had been disclosed and was already in evidence (Ex A, p 23). The failure of disclosure was said to arise from the fact that the digital format in which it was provided to the defence (Portable Document Format or “PDF”) was not capable of the kind of magnification used to create the image shown to the accused in Ex VD1(a). In other words, and in practical terms, while the image was disclosed, neither Mr Nancarrow nor his lawyers were able to zoom in on the image to see that, possibly contrary to Mr Nancarrow’s version of events, the headlamp was lying on his bed.

3. [14]

   The second photograph was a magnified and cropped version of a photograph that had not been physically or electronically provided to the defence.

4. [15]

   The Prosecutor submitted that the first image was disclosed, albeit in a format that did not allow for magnification, and that the accused could have obtained the item in a different format had he asked for it. As to the disclosure of the second photograph, the Prosecutor tendered a statement of Senior Constable Drew (Ex VDA) which said, in paragraphs 8 and 9:

5. [16]

   The prosecution’s disclosure obligations are contained in ss 141 - 142 of the Criminal Procedure Act 1986 (NSW):

6. [17]

   In Edwards v The Queen [2021] HCA 28; 95 ALJR 808, Edelman and Steward JJ held at [68]-[69] that the disclosure obligations are not satisfied by providing the accused with advice that material existed and was available for inspection:

7. [18]

   This was not necessarily a majority view. The other members of the Court (Kiefel CJ, Keane and Gleeson JJ) found it unnecessary to determine whether the disclosure obligations had been otherwise fulfilled because the material was not shown to fall within s 142(1)(i), that is material that would “reasonably be regarded as relevant to the prosecution case or the defence case”. [6] Even so, their Honours observed that s 142 was “only one of several sources of the prosecutorial duty of disclosure” and confirmed statements made by Leeming JA in the Court of Criminal Appeal concerning “good prosecutorial practice” and the desirability of disclosing material in the Prosecutor’s possession.

8. [19]

   In the present case, the material in question is plainly relevant to both the prosecution and the defence case. Based on the observations of the High Court in Edwards v The Queen, I was satisfied there was a breach of disclosure obligations with respect to the second photograph. While there was disclosure of the first photograph, the format in which it was disclosed was imperfect. However, the reality is that the defence legal team could have easily obtained (by asking) the relevant photograph in a format capable of closer examination of the items on the bed by zooming in on those items or magnifying the image.

9. [20]

   Assuming there was a failure of disclosure, as the voir dire developed, there was plainly no unfairness of a kind that would have justified or necessitated the discharge of the jury.

Unfairness

1. [21]

   Generally speaking, a failure of disclosure leads to an objection to the admissibility of evidence rather than an application for discharge of the jury: see, for example, R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227 at [12]-[23] (Harrison J).

2. [22]

   However, it is not difficult to imagine a case where a failure to disclose relevant material leads to unfairness requiring a jury to be discharged. In Miller v R [2015] NSWCCA 206, the Court of Criminal Appeal at [126] summarised the principles relating to applications to discharge a jury following an “inadvertent and potentially prejudicial event” at trial, by reference to the decisions of Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; and Maric v The Queen (1978) 20 ALR 513:

3. [23]

   See also, for example, Re K (2002) NSWCCA 374 at [9]-[10] (Beazley JA, Sully and Simpson JJ), Regina (C’Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448 at [70] (Whealy J), R v Quami (No 40) [2016] NSWSC 807 at [8] (Hamill J) and R v Azari (No 2) [2017] NSWSC 515 at [22]-[23] (Adams J).

4. [24]

   The voir dire and submissions on the discharge application developed organically. Part way through the application the Prosecutor raised the fact that part of the material disclosed well in advance of the trial was an ISRAPs presentation. This is an important evidentiary tool that allows the viewer to roam virtually around a crime scene from various points from which 360 degree photographs are taken. I was told that one of the camera angles in the ISRAPs presentation captured the items on the bed as depicted in the photographs used in the cross-examination that led to the application to discharge the jury. It could be magnified, and a screen shot or still image from the ISRAPs presentation was tendered as Ex VDC.

5. [25]

   The application for discharge of the jury became somewhat muted at this point. [7]

6. [26]

   The photographs that prompted the application (Ex VD1) look like this:

7. [27]

   The magnified image in the ISRAPs (Ex VDC) looks like this:

8. [28]

   There is no relevant unfairness in circumstances where a virtually identical image was available to the defence. The headlamp was on the bed and this was clear from the disclosed material in the ISRAPs presentation. The accused’s provided his version of events in the face of this material.

9. [29]

   Further, while in the heat of battle and in the course of cross-examination, the matter assumed significant importance in the minds of the parties, the Prosecutor could only ever take the matter so far. Mr Nancarrow’s evidence was that he could not remember how the headtorch came to be where it is. The jury may find that to be unremarkable in the circumstances. He may have thrown it there as he got up to go to the top of the stairs. Its presence does not disprove the accused’s account of where he was seated. Even if it did, or if the jury rejects his account that he did not lay on the bed or move about the room, that may be a matter upon which he was simply mistaken. It does not prove he was lying deliberately about that issue, let alone that the critical features of his account should be rejected.

10. [30]

    I was, and remain, firmly of the view that there was no unfairness or prejudice requiring a discharge of the jury.