R v Warwick (No.19) - [2018] NSWSC 655

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.19) [2018] NSWSC 655
Hearing dates: 9 May 2018
Date of orders: 09 May 2018
Decision date: 09 May 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Decline to make Order 7 or any alternative recommendation to the same effect as set out in the Further Amended Notice of Motion.
(2) Make a recommendation to the Governor of Metropolitan Reception and Remand Centre that he ought to seriously consider permitting Ms Charmaine Warwick to attend legal visits in the company of a member of A R Conolly & Co, being Mr Alan Conolly or Ms Elizabeth Ramsay who are the principals of the firm.
(3) Otherwise dismiss the Further Amended Notice of Motion filed 8 May 2018.
(4) In respect of the Further Amended Notice of Motion filed 8 May 2018, I order each party pay their own costs.

Catchwords:
CRIMINAL PROCEDURE – application in relation to custodial conditions of accused before trial – agreement reached with Commissioner for Corrective Services as to a number of orders sought – transfer of accused to previous correctional centre – improper to make order permitting solicitors for the accused to have mobile phone access with internet capacity during legal visits – contrary to policy – clear security risk – strong recommendation made that daughter of the accused be able to attend legal visits in company of solicitors for the accused

Legislation Cited:
Not Applicable

Cases Cited:
Not Applicable

Texts Cited:
Not Applicable

Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
E Poole (Crown)
A R Conolly (Accused)
J S Emmett (Commissioner for Corrective Services)
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Publication restriction: Not to be published until further order of the Court.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 revoked by direction of Garling J on 20.8.2020.

EX TEMPORE Judgment

This is an application by Notice of Motion brought by the Accused. The current pleading is to be found in the document described as the “Further Amended Notice of Motion" which was filed in Court on 8 May 2018. That motion sought eight specific orders or, in the alternative, that the Court make recommendations to the Commissioner for Corrective Services NSW (“the Commissioner”) about specific arrangements addressed in these orders.
The matter first came before the Court yesterday, 8 May 2018, when some evidence was taken. It was adjourned until today to enable further evidence to be taken and for the Commissioner's lawyers to obtain further instructions with respect to the relief being sought.
When the matter returned to court today, I was informed that a good measure of agreement had been reached between the lawyers for the Accused and the Commissioner and, as a result, a number of the orders that were previously sought were no longer pressed.
There were two matters which remained unresolved and required determination. They were Orders 7 and 8 which were sought in…

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.19)

Details

AGLC: R v Warwick (No.19) [2018] NSWSC 655
Case: [2018] NSWSC 655
Decision Date: 09 May 2018

CaseChat Overview and Summary

The case before the court involved an application by the accused, Warwick, concerning his custodial conditions prior to his trial. Warwick sought various orders, including the transfer of his custody to a different correctional centre and permission for his solicitors to have mobile phone access with internet capacity during legal visits. The Commissioner for Corrective Services agreed to the transfer but opposed the mobile phone access request due to policy restrictions and security risks. Additionally, Warwick requested that his daughter be allowed to attend legal visits in the company of his solicitors.

The central legal issues the court had to resolve were whether the accused was entitled to the requested custodial conditions and if the Commissioner's opposition to the mobile phone access was justified. The court had to consider the balance between the accused's rights and the operational policies of the correctional services, as well as the potential security implications of granting the requests.

The court determined that the transfer to the previous correctional centre was appropriate given the agreement between the parties. However, it found that permitting the accused's solicitors to have mobile phone access with internet capacity during legal visits was improper. The court reasoned that this request contravened policy and presented a clear security risk. Consequently, the court rejected this part of the application. Regarding the daughter's attendance, the court made a strong recommendation that she be allowed to accompany the solicitors during legal visits, subject to certain conditions being met.

The court's final orders included the transfer of Warwick to the previous correctional centre and a strong recommendation that his daughter be permitted to attend legal visits with his solicitors, subject to conditions. The order denying mobile phone access with internet capacity during legal visits was upheld.

Orders