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

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

The non-disclosure of Exhibit Voire Dire 8 was innocent but wholly unsatisfactory. The certificate could affect the weight of the bomb-making material, but it did not significantly alter the s 137 evaluation or the basis on which the material was admissible, namely as limited evidence of knowledge relevant to capacity. The non-disclosure did not materially change the forensic landscape, was not deliberate, and any risk of unfair prejudice could be addressed by appropriate judicial directions. It was not capable of depriving the accused of a fair trial, so the jury should not be discharged.

Jurisdiction
Australia
Judgment Date
10 July 2019
Procedural Posture
Criminal Procedure Ruling in a Murder Trial / Application by the Accused to Discharge the Jury During Trial Following Non Disclosure of an Expert Certificate
Outcome
Application to discharge the jury refused.
Legal Topics
['application to Discharge Jury' 'non Disclosure of Expert Report' 'admissibility of Bomb Making Material' 'section 137 Unfair Prejudice' 'judicial Directions' 'circumstantial Evidence']
['criminal Procedure' 'evidence'] ['application to Discharge Jury' 'non Disclosure of Expert Report' 'admissibility of Bomb Making Material' 'section 137 Unfair Prejudice' 'judicial Directions' 'circumstantial Evidence']

Case Brief

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Procedural Posture

Criminal Procedure Ruling in a Murder Trial / Application by the Accused to Discharge the Jury During Trial Following Non Disclosure of an Expert Certificate

Legal Issues

  1. 1 ["Whether the non-disclosure of Mr Peter Ballard's expert certificate dated 3 November 2016 required discharge of the jury." 'Whether the non-disclosed certificate undermined the earlier pre-trial ruling admitting the bomb-making material.' 'Whether the evidence should have been excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice.' 'Whether judicial directions could overcome any apprehended prejudicial impact.']

Ratio Decidendi

The non-disclosure of Exhibit Voire Dire 8 was innocent but wholly unsatisfactory. The certificate could affect the weight of the bomb-making material, but it did not significantly alter the s 137 evaluation or the basis on which the material was admissible, namely as limited evidence of knowledge relevant to capacity. The non-disclosure did not materially change the forensic landscape, was not deliberate, and any risk of unfair prejudice could be addressed by appropriate judicial directions. It was not capable of depriving the accused of a fair trial, so the jury should not be discharged.

Court Disposition

Application to discharge the jury refused.

Orders

  • ['Refuse application to discharge jury']