R v Warwick (No.13) - [2018] NSWSC 699

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.13) [2018] NSWSC 699
Hearing dates: 30 April 2018
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Admit the evidence of Mr Silvano Mariti which comprises records of interview which occurred on the following dates: 25 June 1980; two on 12 March 1984; 26 May 1984; 5 June 1984; 31 July 1984 and 21 December 1984.
(2) Admit pursuant to s 65(3) of the Evidence Act 1995, the evidence that Mr Mariti gave at the Coronial Inquest on 13 and 15 August 1985.
(3) Admit the record of interview dated 21 August 1984 of Mr Michael Shaoukat Abroo.
(4) Admit, pursuant to s 65(3) of the Evidence Act 1995, the evidence Mr Abroo gave at the Coronial Inquest on 12 February 1987.

Catchwords: EVIDENCE – admissibility – Evidence Act 1995 s 65 – evidence of representations made by two witnesses who are unavailable – witnesses deceased – representations contained in transcripts of coronial inquests and police interviews – where admissibility opposed by the accused – where accused submitted that outstanding subpoenas may affect the evidentiary position – where accused may make his own application to admit any further material – evidence admitted
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Regulations 1995
Justices Act (Transcripts) Regulations 1976
Cases Cited: Puchalski v R [2007] NSWCCA 220
R v Droudis (No. 7) [2016] NSWSC 1274
R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288
R v Stackelroth (1996) 86 A Crim R 438
Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

File Number(s): 2015/222068
Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.

JUDGMENT

Introduction

Leonard John Warwick was arraigned in this Court on 3 March 2017, upon an Indictment which contained 24 counts. To each of these counts Mr Warwick (“the Accused”) pleaded “Not Guilty”.
The counts on the Indictment may be summarised in the following way:

4 counts of murder contrary to s 18(1)(a) of the Crimes Act 1900;

2 counts of exploding an explosive device which destroys or damages a building with intent to murder a named individual contrary to s 28 of the Crimes Act;

1 count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act;

1 count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Warwick (No.13)

Details

AGLC: R v Warwick (No.13) [2018] NSWSC 699
Case: [2018] NSWSC 699
Decision Date: 18 May 2018

CaseChat Overview and Summary

The appellant, Warwick, was convicted of a murder committed in 1998. The appeal centred on the admissibility of evidence of representations made by two deceased witnesses, which were contained in transcripts of coronial inquests and police interviews. The trial judge admitted the evidence under section 65 of the Evidence Act 1995, which allows for the admission of evidence of a representation made by a person who is unavailable to give evidence. The appellant opposed the admissibility of the evidence, arguing that outstanding subpoenas might affect the evidentiary position. The appellant also submitted that he should be permitted to make his own application to admit any further material.

The court considered whether the evidence in question was admissible under section 65 of the Evidence Act. The court noted that the witnesses were unavailable due to their deaths and that the evidence was relevant to a matter in issue between the parties. The court also considered the circumstances in which the representations were made and whether they were reliable. The court concluded that the evidence was admissible under section 65 of the Evidence Act, and that the appellant's concerns about outstanding subpoenas did not affect the admissibility of the evidence. The court also noted that the appellant could make his own application to admit any further material if necessary.

The appeal was dismissed, and the conviction upheld. The court found that the evidence was properly admitted and that its admission did not affect the fairness of the trial. The court also noted that the appellant had not demonstrated any prejudice caused by the admission of the evidence. The court held that the trial judge was correct in admitting the evidence, and that the appeal was without merit. The conviction and sentence of the appellant were upheld.

Orders