R v Warne

[2020] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Warne

Citation:

[2020] ACTSC 313

Hearing Date(s):

20 November 2020

DecisionDate:

20 November 2020

Before:

Elkaim J

Decision:

See [16]

Catchwords:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – change of circumstances – brief of evidence – bail granted

Legislation: 

Bail Act 1992 (ACT) s 20C

Cases Cited:

R v Chatfield [2017] ACTSC 325
R v Green [2018] ACTSC 268

Parties:

The Queen ( Crown)

Alexander Douglas Jeremy Warne ( Accused)

Representation:

Counsel

M Howe ( Crown)

J Pappas ( Accused)

Solicitors

ACT Director of Public Prosecutions ( Crown)

McKenna Taylor ( Accused)

File Number:

SCC 246 of 2020

ELKAIM J:

1. In this matter, the applicant seeks bail. In order to obtain bail, he has to initially convince me that there has been a change of circumstances since his last application for bail which was made in the Magistrates Court on 30 September 2020 and obviously was unsuccessful (Bail Act 1992 (ACT) s 20C).

1. He says there has been a change in circumstances because on about 7 October 2020, his solicitors received a copy of the brief of evidence and that brief contains certain material which he says markedly affects his capacity to maintain and, in fact, enhance his defence.

1. His defence is that he had nothing to do with the alleged crimes.

1. The more important parts of the brief, as relevant here, concern identification evidence of the alleged perpetrators and, in particular, from a witness who gives a description of the people involved which, at least at first sight, does not appear to conform with the appearance of the applicant.

1. The Crown says there hasn't been a change in circumstances because the ‘new’ evidence is not as significant as might appear. That is because there is a separate identification witness who knows the applicant very well and that person identifies him. Therefore any other identification is less important.

1. The Crown has relied on two decisions in this Court, R v Chatfield [2017] ACTSC 325, a decision of Mossop J, and R v Green [2018] ACTSC 268, a decision of McWilliam AsJ.

1. Both of the decisions set out the applicable principles. I think it worth quoting from the decision of Mossop J at [12]. He says:

…I accept that there will be cases in which the provision of the material in the prosecution brief will constitute a change in circumstances or fresh evidence or information of relevance to the granting of bail…

1. The question that arises in this matter is whether the fresh evidence or the material in the prosecution brief does amount to a change in circumstances or whether or not it is simply a minor detail which does not affect the essence of the Crown case. 

1. No doubt the evidence of the complainant will be very important and will be the subject of much cross-examination.  The strength of that evidence will, of course, depend on a jury, or a judge sitting alone, having regard to the evidence when it is given.  It may, however, also be influenced by whether or not there is corroborating evidence. 

1. So as apparently less important as the other identification evidence may be, it might assume a greater importance depending upon it being corroborative, or not, of the evidence of the principal identification witness. In other words, if the credit or reliability of the principal identification witness is attacked, the nature of any supportive, or otherwise, identification evidence, may be important, perhaps critical.

1. In my view, the new evidence in this case does have the capacity to be material in the sense that is contemplated by Mossop J. The emergence, to the applicant, of evidence of another person which is inconsistent with the evidence of the principal identification witness, and consistent with the defence, is a material consideration, capable of amounting to a change of circumstance.

1. Accordingly, I think there has been a change of circumstances.

1. The Crown told me, and this is an indication of the fair approach taken by the Crown, that if the change of circumstances hurdle was overcome, then there is little that the Crown wishes to say.

1. The Crown has, however, pointed out that there is a significant distinction between this applicant and the co-accused, who is on bail, in that there would seem to be more likelihood of this applicant interfering with one of the witnesses (specifically the complainant).  I think that is a real concern, but I think it is a concern that can be met by appropriate conditions.

1. Accordingly, I will grant bail but the conditions should be strict and ensure as much protection to the complainant as possible.

Orders:

1. Bail is granted on the following conditions:

(a)[conditions redacted].  

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 24 November 2020