The details of how a Wollongong police bungle nearly stopped sexual assault allegations against NRL player Jack de Belin and his friend Callan Sinclair going to trial have now been revealed.
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In May this year, the Director of Public Prosecutions withdrew rape charges against the men after the juries in their first two trials in November 2020 and April 2021 were unable to reach verdicts.
The men denied they sexually assaulted a then-19-year-old woman in a Wollongong townhouse following a night out at Mr Crown after the Santa Pub Crawl. The men repeatedly claimed the threesome was consensual.
In January 2020, Mr de Belin's lawyers applied for a stay of proceedings, which if granted, would mean the charges would not have proceed to trial.
However, Judge Andrew Haesler refused the application, which was primarily based on claims the officer in charge, Wollongong Detective Senior Constable Shawn Adams, viewed and acted on legal privileged information on Mr De Belin's phone.
Judge Haesler listened to the arguments and assessed evidence during several days of hearings in February and June last year in Wollongong District Court. A non-publication order was placed on proceedings but was lifted and this week Judge Haesler's judgement was published.
The hearings were also delayed because of the COVID pandemic and a key witness falling ill.
Judge Haesler ultimately denied the application given the police conduct in question occurred after the trial had been set down and charges against the men had been laid.
Mr de Belin's barrister David Campbell argued the detective's actions meant the men would not receive a fair trial.
"There was a serious breach of De Belin's privilege," Judge Haesler said. "There was a significant breach of Sinclair's privilege.
"While there was unlawful police conduct there has been no demonstrated defect in trial proceedings.
"Any exposure or possible exposure to privileged material had no impact on the charge process or the major steps taken to prepare for trial."
The court heard, more than a year after the alleged assault and the men being charged, a search warrant was executed in December 2019 for the pair's devices so police could download information using a program called Cellebrite.
Judge Haesler found Det Adams' and other investigating officers were "determined" to get access to Mr de Belin and Mr Sinclair's devices to find out what the pair had discussed after being charged, and about any information the Dragons Rugby League Club had which police believed had not been passed onto them.
Following Det Adams' evidence and cross-examination in the stay proceedings, Judge Haesler determined the detective scrolled through Mr de Belin's text and WhatsApp messages looking for any relevant evidence and came across a file labelled "Craig Lawyer".
"When he saw the contact 'Craig Lawyer' file he may well have believed initially it was Dragons' business but he exercised no caution or respect for the possibility the conversations might be privileged," Judge Haesler said.
"As soon as he accessed the file it would have been obvious the messages related to the trial litigation.
"He exercised no caution and took no steps to protect De Belin's rights.
"Once he knew he was viewing privileged material he did not stop.
"He didn't think it important or he kidded himself he could ignore what he wasn't supposed to see. If that was his thought process it was self-delusional."
While on the stand during the stay of proceedings hearing, Det Adam initially rejected the suggestion he had seen any legal professional material but upon receiving a certificate that protected him from self-incrimination the detective conceded he did see the information and knew it might be relevant to the trial.
Judge Haesler went on to say Det Adams was "so unconcerned" about what he had viewed that he "lied" about using privileged material in his affidavit during the stay proceedings.
"He accepted that he knew that the SMS messages to and from 'Craig - Lawyer' was privileged information that he was not entitled to have," Judge Haesler said.
"Adams' proved lies and demonstrated lack of candour related to only one specific area - his access to the 'Craig lawyer' SMS on De Belin's yellow Nokia.
"Adams lied to the court; in his affidavit; in his evidence in chief and in his cross-examination, immediately prior to his receiving the s 128 Certificate. He admitted as much. The lies are also obvious when viewed with the objective evidence."
Judge Haesler was scathing in his criticism of Det Adams' actions, labelling them a "cock-up".
"Whether as a result of brain fade or overzealousness or a simple cock-up, having seized the device, to 'scroll' through De Belin's Nokia phone and the SMS file 'Craig Lawyer' was ill-judged and reckless and had the capacity to provide an unfair advantage to investigating police," he said.
"I do not accept the submissions; Adams actually intended to get privileged material or that he realised legal professional privilege would be present but went ahead regardless without due precautions. . . Adams didn't even consider the possibility of his actions might breach an accused's privilege."
