R v Warwick (No.2)

[2017] NSWSC 1225

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.2) [2017] NSWSC 1225
Hearing dates:	21 August 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1)   The Crown is permitted to lead the coincidence and tendency evidence described in the three Notices served on 22 June 2017. (2)   The accused’s oral application for separate trials is rejected.
Catchwords:	CRIMINAL LAW – evidence – tendency and coincidence evidence – where evidence has significant probative value CRIMINAL PROCEDURE – severing of the Indictment – whether jury likely to be overwhelmed by size of Indictment and length of trial – whether in the interests of justice to sever Indictment
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Criminal Procedure Act (1986) (NSW)
Cases Cited:	El Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Glover v R; Stuart v R [2015] NSWCCA 285 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 R v Ceissman [2010] NSWCCA 50 R v Dickman [2017] HCA 24; (2017) 91 ALJR 686 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 R v Ford [2009] NSWCCA 306 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Matonwal & Amood [2016] NSWCCA 174 R v MM [2014] NSWCCA 144 Saoud v R [2014] NSWCCA 13; (2014) 87 NSWLR 481 Selby v R [2017] NSWCCA 40 Symss v The Queen [2003] NSWCCA 77 Verma v R (1987) 30 A Crim R 441
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) R Thomas (Accused)   Solicitors: Director of Public Prosecutions (Crown) Havas & Dib Lawyers (Accused)
File Number(s):	2015/222068
Publication restriction:	Not to be published until after return of verdict by Jury or further order of the Court. Suppression order lifted on 14 February 2020.

Judgment

1. The Crown has presented an indictment against Leonard John Warwick (“the accused”) which contains 24 counts.

2. The accused is charged with the following offences:

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

2. two 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;

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

4. one count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the Crimes Act; and

5. thirteen counts of maliciously, by an explosion, causing grievous bodily harm to named individuals contrary to s 46 of the Crimes Act.

3. In addition to these 21 counts, there are three further counts charged in the alternative which do not need description for the present.

4. When arraigned before me, the accused pleaded not guilty to each of the counts on the Indictment.

5. A trial has been fixed to commence in February 2018. This judgment deals with pre-trial applications which were made by both the Crown and by the accused.

6. The Crown’s applications deal with the admissibility of coincidence and tendency evidence. The accused made oral application for the severance of the counts in the Indictment, so as to have seven separate trials.

Crown Case

7. The Crown’s case is that the accused was responsible for each of seven events, which have given rise to the charges in the Indictment.

8. The seven events can be described in the following way:

Event No.	Description	Count on the Indictment
1.	The murder of Stephen Blanchard at Revesby on or about 22 February 1980 (‘the Stephen Blanchard murder’)	Count 1
2.	The murder of Justice David Opas at Woollahra on 23 June 1980 (‘the Opas murder’)	Count 2
3.	The bombing of Justice Richard Gee’s home in Belrose on 6 March 1984 (‘the Gee bombing’)	Counts 3-4
4.	The bombing of the Family Law Court building at Parramatta on 15 April 1984 (‘the Family Court bombing’)	Count 5
5.	The bombing of Justice Raymond Watson’s home at Greenwich on 4 July 1984 (‘the Watson bombing’)	Counts 6-8
6.	The bomb found in a vehicle at the former home of Garry Watts on 10 February 1985 (‘the Watts bombing’)	Counts 9-10
7.	The bombing of the Kingdom Hall of the Jehovah’s Witness church at Casula on 21 July 1985 (‘the Kingdom Hall bombing’).	Counts 11-24

9. The Crown submitted that the context surrounding each of these events is that during the period in which these events occurred, there were proceedings in the Parramatta Registry of the Family Court of Australia between the accused and his wife, Ms Blanchard, with respect to the custody of, and access arrangements with respect to, their daughter Trudi who was born in June 1978. As well, the proceedings included claims with respect to the division of property and, in particular, the sale of the former matrimonial home in which the accused lived. The accused and Ms Blanchard were married on 19 October 1974. They separated on 17 March 1979.

10. The Crown will submit to the jury that each of the seven events was connected to, or arose out of, the course of the Family Court proceedings.

11. What follows is a summary for the purposes of these applications of the Crown case with respect to each event. It is drawn from documents prepared by the Crown, and outlines its case as it presently anticipates it will be put to the jury.

Event 1 – the Stephen Blanchard Murder

12. On 17 March 1979, Ms Blanchard left the accused and the matrimonial home, and together with her daughter Trudi went to live with her father Lesley and her brother, Stephen Blanchard, at their house at Revesby. Stephen was then 24 years old.

13. At an early stage of the Family Court proceedings, on 30 April 1979, joint custody of Trudi had been granted to Ms Blanchard and the accused. Whilst Ms Blanchard had the care and control of Trudi, the accused was given two periods of access between 9am and 5pm on two days per week. That access was to be supervised by a Family Court counsellor who was required to provide a report to the Court dealing with the effectiveness of the orders and the behaviour of the parties with respect to them.

14. On 18 December 1979, the accused exercised his access rights, calling at Ms Blanchard’s father’s home to collect Trudi. In accordance with the Court orders, and Ms Blanchard’s wishes, the accused was required to return Trudi by 5pm that day.

15. That did not occur. When Trudi had not been returned, Ms Blanchard with her brother Stephen to assist her, attended the former matrimonial home in which the accused was living in order to retrieve Trudi. Ms Blanchard knocked on the front door and eventually the accused open it, holding Trudi. Ms Blanchard said “I’ve come to get Trudi, I don’t want to cause any trouble”, the accused said “No”. Ms Blanchard said “I’ll have to get the police”. The accused said “You do that”. Stephen Blanchard then intervened in support of his sister and said to the accused “Look mate, we just want the baby – just hand the baby over”. The accused refused to do so and slammed the front door.

16. Stephen Blanchard and his sister then attended Liverpool Police Station, and together with the police, they again attended the former matrimonial home. The accused was not present and had taken Trudi with him to an unknown location. Trudi was returned to Ms Blanchard at 5pm the following day.

17. The deliberate failure of the accused to comply with the Court’s custody orders, of which failure Mr Stephen Blanchard was the only independent witness, was drawn to the attention of the Court counsellor. The Court counsellor telephoned the accused to discuss the matter. According to the Court counsellor’s later report, the accused was angry and abusive towards her and said words to the effect that “Nobody was going to tell him what to do with his child”.

18. At that time, Stephen Blanchard was working at the Revesby Workers Club. He was last seen alive on the evening of 21 February 1980, when he visited a female friend, Ms Julie Ayling, at her house in Revesby after completing a shift at the Club. He left Ms Ayling’s house at around midnight in his motor vehicle, having informed Ms Ayling that he intended to travel to the home of another friend that evening and stay the night there. On the next morning, Ms Blanchard noticed that Stephen was not home and became concerned. His car was parked in the driveway of the home and his work boots were in his bedroom.

19. Stephen Blanchard was reported missing on 24 February 1980 after his family had exhausted all possible avenues of enquiry. His body was found on 27 February 1980 floating in Cowan Creek in the Ku-ring-gai Chase National Park. He had been shot in the head with a .22 calibre firearm.

20. Police investigations identified a number of spots of blood on a wall beneath the window in the bedroom that Stephen Blanchard occupied at his father’s home. Whilst there were no signs of a struggle in the bedroom, the bed and bedding ordinarily to be found in the room, were missing. The Crown case is that Mr Blanchard was disabled or killed in the bedroom and his body dumped in Cowan Creek. The missing items were never recovered.

21. The Crown also relies on a series of other circumstances which, it will submit to the jury, point to the accused as being the person responsible for Stephen Blanchard’s death. In particular, the Crown relies upon statements made by the late Stephen Blanchard to a close friend, which included a statement that the accused had warned Stephen Blanchard to keep out of the way, apparently in respect of the dispute between himself and Ms Blanchard.

22. The Crown also proposes to lead evidence that Stephen Blanchard was a man who had no known antagonists or enemies and that there was no other obvious suspect who may be regarded as responsible for his death.

Event 2 – the Murder of Justice David Opas

23. Justice David Opas was a judge of the Family Court of Australia who was based at the Parramatta Registry. He lived in Edgecliff Road in Woollahra with his wife and family.

24. When the Family Court proceedings first came before the Family Court, they were allocated to the management list of Justice Opas. He first made orders, which were by consent, on 30 April 1979.

25. Initial contested proceedings were determined by Justice Opas in May 1979. The results largely, but not entirely, favoured the accused.

26. In December 1979, the matter returned before Justice Opas and his Honour considered the report of the Court counsellor about the custody and access arrangements, and the welfare of Trudi. The accused was present but not legally represented in court that day. The Crown’s case is that Justice Opas made comments directly to the accused which were critical of his behaviour, warned him that although he had succeeded in his application the previous May, that was not necessarily a permanent result, and that he may when the proceedings were fully heard, end up being required to leave the matrimonial home. As well, on that day, Justice Opas threatened to jail the accused if he did not comply with an earlier indication of the Court with respect to returning some goods to his separated wife.

27. On that day in December, Justice Opas ordered that the Family Court counsellor continue to supervise and monitor the custody arrangements, including the accused’s access to Trudi for another six months.

28. On 22 April 1980, the proceedings were again listed before Justice Opas. It is fair to say that there was a sharp exchange directly between Justice Opas and the accused in court on that day. His Honour was of the view that the accused had given an earlier undertaking to return a cot to his separated wife. The accused disputed that he had given such an undertaking. It was clear that Justice Opas was of the view that the accused had given such an undertaking and that he had refused to comply with it. That view led Justice Opas to again threaten the accused with the prospect of being jailed if he did not comply with his obligation to return the cot.

29. His Honour adjourned the proceedings until 20 May 1980 and suspended the accused’s access to his daughter during that adjourned period. The proceedings were relisted on 2 May 1980 before Justice Opas when an application was made by counsel for the accused for the suspension to be lifted. His Honour declined to make that order. He indicated that he would fully hear the proceedings on the next occasion, being 20 May 1980.

30. On 13 May 1980, Ms Blanchard filed a substantive application in the Family Court seeking orders with respect to the final disposition of property, maintenance, and that she be granted custody of Trudi with any access to the accused being suspended until further order of the Court. She also filed separately an application for Dissolution of Marriage.

31. The whole matter including the new application came back before Justice Opas on 20 May 1980. His Honour made further orders including for mutual discovery and then for a mediation conference, and vacated his earlier orders suspending access to Trudi. Again he ordered that access continue to be supervised for a further period of six months with the provision of a report by a Court counsellor.

32. During a luncheon break on 20 May 1980, the Crown alleges that the accused said to Ms Blanchard words to the effect “You won’t have to worry about him [referring to Justice Opas] anymore because he won’t be there much longer”. Ms Blanchard replied “Why, is he going on holidays?” The accused replied, “No, he just won’t be there at all”.

33. In the ordinary course of the practice of the Family Court at the Parramatta Registry, the substantive applications filed by Ms Blanchard would have been expected to be managed and heard by Justice Opas. Justice Opas was murdered on 23 June 1980. He was shot by a .22 calibre rifle. The weapon has not been identified.

34. The Crown relies on other circumstances relating to this event, including that the shooting occurred after the accused finished his shift as a fireman, and was not on duty.

Event 3 – Bombing of Justice Gee’s Home

35. Justice Richard Gee was a judge at the Family Court of Australia who lived at Belrose with his wife and two young children.

36. On 15 April 1981, the Family Court proceedings involving the accused and Ms Blanchard came before Justice Gee who was sitting in the Parramatta Registry, for the determination of the property settlement issues. After submissions by counsel for both parties, Justice Gee ruled, over the opposition of the accused, but in favour of the submissions of Ms Blanchard, that the matrimonial home ought be sold, and the net proceeds be divided equally. Because Justice Gee did not make any further orders with respect to the custody of Trudi, the previous orders made by Justice Opas in May 1980 continued in effect.

37. The accused did not comply with Justice Gee’s order to sell the former matrimonial home. Despite attempts to resolve the issue, an agreement could not be reached, as to any conduct on the part of the accused to move out of the former matrimonial home, to enable it to be sold.

38. In December 1982, the new solicitors for Ms Blanchard, Ledlin Watts and Associates, wrote to the accused’s solicitor seeking to make firm arrangements for the marketing and sale of the property. They did not receive any satisfactory response. In March 1983, Ms Blanchard’s solicitors filed an Application for Further Orders, the purpose of which was to achieve compliance with Justice Gee’s orders of April 1981 concerning the sale of the property. Another order sought was that the accused vacate the former matrimonial home within 28 days. Other evidence was put before the Court with respect to the accused’s access to Trudi as a basis for seeking orders that all further access by the accused to Trudi be suspended.

39. The proceedings came before the Court on a number of occasions between April 1983 and July 1983, and were adjourned either because the accused did not appear or else because when he appeared he was unrepresented. The accused’s former solicitor had withdrawn on 26 April 1983. On two occasions during this period, Justice Gee made orders which foreshadowed that if the accused did not appear, then Ms Blanchard’s applications might be dealt with in his absence and orders could be made as she had sought.

40. On 19 July 1983, the matter came back before Justice Gee who made most, but not all, of the orders sought by Ms Blanchard in her application. In particular, he made orders with respect to the sale of the matrimonial home and other orders with respect to access to Trudi. The amount of access allowed to the accused was reduced by that order. In effect, it was halved.

41. The accused’s non-compliance with the orders continued, as did the difficulties with respect to access to Trudi.

42. A further application was made on 27 January 1984 with respect to the custody of Trudi, seeking an order that the accused have no access allowed to him. It also sought an order that members of the Australian Federal Police or NSW Police could visit the accused and take possession of Trudi and deliver her to Ms Blanchard. A judge of the Family Court other than Justice Gee (who was on annual leave) made some of those orders.

43. On 31 January 1984, the matter again came back again before Justice Gee. He ordered that the police could take possession of Trudi and return her to Ms Blanchard. He also ordered that the remainder of the application be adjourned for about two weeks. That day, Federal Police Officers in company with Ms Blanchard, attended the accused’s home and took possession of Trudi.

44. The proceedings were then adjourned for final hearing to 6 March 1984. They were to be listed before Justice Gee on that day. Affidavits were filed in court which supported an application for defined access orders which would have allowed the accused access to Trudi on each alternate Saturday, that the accused be restrained from keeping Trudi outside of the defined periods and hours, and that any officer of the Federal or State police would be authorised for the purpose of enforcing compliance to deliver Trudi back to Ms Blanchard. The affidavits were served on the accused on 25 February 1984.

45. At about 2am, in the early morning of 6 March 1984, the day upon which the proceedings were due to be heard, a bomb exploded at the home of Justice Gee at Belrose. Justice Gee was injured and admitted to hospital. His house was significantly damaged and largely destroyed. His two children who lived in the house at the time were not physically injured.

46. The orders being sought by Ms Blanchard were nevertheless granted on that day by another judge of the Family Court, Justice Watson, in circumstances where Justice Gee was in hospital. The accused did not appear in court on that day. It was public knowledge that the proceedings on 6 March 1984 were listed before Justice Gee, since the Parramatta Family Court Lists were printed in the Sydney Morning Herald each day.

47. The Crown’s case is that in the period between the murder of Justice Opas in June 1980 and March 1984 when Justice Gee’s home was bombed, Justice Gee had dealt with the accused’s Family Court proceedings on at least five occasions. During this period he had made a significant number of orders adverse to the accused’s interests in the proceedings including the sale of the matrimonial home and the restriction of the accused’s access to his daughter.

48. The application that was pending and due to be heard by Justice Gee on the day that his house was bombed would, if successful, have further restricted the accused’s access to his daughter.

49. The Crown intends to lead evidence of an expert nature that the damage to Justice Gee’s home was consistent with the functioning of a high explosive, likely to be gelignite. The quantity of explosive was estimated to be in the range of 1‑1½kgs, namely five to eight sticks of high explosive gelignite. The type of fuse that was used was a slow burning fuse which ignited non-electric detonators. The fuse would have taken about six minutes from the commencement of ignition until the principal explosion.

Event 4 – Bombing of the Family Law Court of Australia Building

50. At about 10.20pm on 15 April 1984, an explosion took place at the front of the Family Law Court of Australia building which was then situated at 36 Charles Street, Parramatta. There were no people in the vicinity of the bomb when it exploded and nobody was injured. The Court was closed at that time.

51. The Family Court proceedings between the accused and Ms Blanchard had taken place in this building. Future proceedings would be held in this building.

52. Experts concluded that the explosive device which was used was a pipe bomb. That is to say, an explosive substance had been placed inside, and detonated within, the confines of a metal pipe which had been sealed at one end. The pipe itself was approximately 9” in length and had an outer diameter of approximately 5”. It was made of mild steel and had been galvanised.

53. Expert evidence to be advanced for the Crown suggests that the pipe used for this bomb could accommodate about 2kgs of gelignite being the equivalent of between 12 and 16 sticks of gelignite. No detonator or fragment of any detonator was recovered from the crime scene. An expert expressed the view at the coronial inquest that the most probable form of initiation was a safety fuse. That was the nature of the fuse that had been used in the bombing of Justice Gee’s home.

54. The explosive device was placed immediately adjacent to a corner pillar of the courthouse building. It was a fragmenting device designed to break into pieces and produce very high velocity penetrative cutting fragments. On that basis, an expert who gave evidence at the inquest expressed the view that the bomb was likely have been intended to cut down the corner pillar of the courthouse thereby bringing the entire building down.

55. At the scene of the explosion, and near the seat of the explosion, police recovered several fragments of a jute (hessian) bag that the Crown will submit, was a bag in which the explosive device was contained. The accused’s home was searched on 31 July 1984. Police located six hessian bags at his home and a further hessian bag in his motor vehicle.

56. The Crown relies upon other circumstances to point to the involvement of the accused.

Event 5 – Murder of Pearl Watson

57. Justice Raymond Watson was a judge of the Family Court of Australia who presided over matters at the Parramatta Registry. He lived in Greenwich with his wife, Pearl.

58. At about 8.10am on the morning of Wednesday 4 July 1984, Justice Watson prepared to leave his house and to be driven to work. He went into his study to collect some papers required for the day whilst his wife, Mrs Pearl Watson, preceded him to the front door of their apartment to farewell him.

59. Justice Watson then walked towards the front door and as he did so Mrs Watson began to open the front door for him. There was then a large explosion which instantly killed Mrs Watson and injured Justice Watson who nevertheless managed to walk out onto the street to seek help.

60. The autopsy carried out on the body of Mrs Pearl Watson found that the cause of death had been massive fractures of the skull and brain damage caused by the blast.

61. Examination of the crime scene led experts to conclude that the type of explosive used was gelignite. The charge size was estimated to be between 1.8 and 2kgs. It was not contained in a pipe.

62. The experts concluded that in all probability, the explosive device had been detonated upon the partial opening of the door by use of a simple electric firing circuit which was mechanically operated by an improvised pull switch attached to the front door knob of Justice Watson’s apartment. The switch mechanism was likely to have been operated by an electric circuit, which comprised an Eveready 6 Volt No.509 battery, an electric detonator and the main charge.

63. Justice Watson had heard the Family Court proceedings involving the accused and his former wife on 6 March 1984, in lieu of Justice Gee, whose home had been bombed that morning. On that day Justice Watson granted the orders, in substance, being sought by Ms Blanchard, including an effective reduction in the accused’s access to his daughter. In particular, the orders provided for police to be authorised to ensure compliance with the access orders. The effect of this was that the accused could not ignore the access orders as he done in the past.

64. The Crown relies upon other circumstances and observations pointing to the accused’s involvement in this event.

Event 6 – the Watts Bombing

65. Mr Gary Watts was the principal of a law firm, Ledlin Watts and Associates, who commenced acting for Ms Blanchard in December 1982 with respect to her Family Court proceedings. At that time, and for at least 18 months afterwards, Mr Watts resided at 12 Kira Avenue, Northmead. Mr Watts sold the property on 23 July 1984 and moved out. The new owners moved in shortly thereafter, resided in the property for a few months and then rented it out. One tenant was a Mr Peter Tall.

66. The 1983 and 1984 White Pages telephone directory listed Mr Gary Watts as residing at 12 Kira Avenue, Northmead. Those were the two directories which were commonly available in the first half of 1985.

67. Mr Tall arrived home at 12 Kira Avenue on the evening of Saturday 9 February 1985. He parked his car in the driveway at the front of the house. He did not lock it.

68. When he awoke on the following morning, Sunday 10 February 1985, he went outside at about 9.30am. He intended to undertake some mechanical repairs on his car. He decided after some consideration that he would carry out the work on the car where it was parked.

69. He opened the driver’s door and put the keys in the ignition. He pulled the bonnet release latch. He walked to the front of the car and lifted the bonnet and saw a suspicious package in the engine bay. It appeared to him to look like four tubes bundled together with string. Each tube was wrapped in plastic and appeared to him to be attached to wires which were then hooked up to the car battery and ignition coil. Mr Tall called 000 and the police arrived. The vehicle was examined by officers with experience in improvised explosive devices. They defused the explosive device by removing the detonator.

70. An examination of the device indicated that there were four 1kg packets of ICI-manufactured Molanite tied together with heavy white string. An electric detonator had been inserted between the cartridges of the Molanite with one leg wire from the detonator being attached to the negative terminal of the car battery and the other leg wire connected to the positive terminal of the ignition coil the device was designed to detonate when the ignition switch of the vehicle was turned on. When the ignition switch was turned on there would be a difference of voltage in the battery between the positive and negative terminals. This amount of voltage would have exploded the detonator and in turn the Molanite.

71. Mr Watts was, at the time when this bomb was discovered, Ms Blanchard’s solicitor and had the carriage of the proceedings in which enforcement of the orders of Justice Gee with respect to the sale of the matrimonial home was being sought. As well, he was acting for Ms Blanchard with respect to the issues relating to custody and access of Trudi.

72. On a number of occasions Mr Watts’ firm filed applications which sought to suspend the accused’s access to his daughter and to enforce his compliance with Justice Gee’s orders so as to achieve the sale of the property.

73. The Crown’s case in summary with respect to Mr Watts’ involvement in the Family Court proceedings was that his firm was responsible for putting on a number of applications on behalf of Ms Blanchard with respect to the sale of the property and restricting access of the accused to his daughter. The accused was opposing those orders. At the time the bomb was discovered in Mr Tall’s vehicle, Mr Watts’ firm had an application pending before the Court to forcibly remove the accused from the matrimonial home.

74. The Crown relies upon other circumstances indicating the likelihood of the accused’s involvement in this event.

Event 7 – Kingdom Hall Bombing

75. In about December 1984, Ms Blanchard decided to move from her home in Sydney to Forster on the NSW mid-north coast. She intended to move there with her daughter Trudi and her sister Judy.

76. Ms Blanchard was motivated to make the move because of the ongoing custody dispute she was having with the accused over Trudi and which was a continuing source of tension. She did not inform the accused that she intended to move and took steps to ensure that her new address in Forster would not be readily ascertainable.

77. Ms Blanchard’s sister was a member of the Jehovah’s Witnesses Church (“the Church”). She was a member of Lurnea congregation of the Church. That congregation met on Sunday mornings at the Kingdom Hall at Casula. Other congregations of the Church used the Kingdom Hall at different times and on different days.

78. On one or two occasions in late 1984, Ms Blanchard attended the church with Trudi and her sister. Trudi had also been to meetings of the church with her aunt Judy on about six occasions. Sometimes she would go with her cousins.

79. Ms Blanchard’s sister Judy sought help from members of her congregation to assist her and Ms Blanchard with the task of moving to Forster.

80. On the morning of 9 February 1985, which was the intended date of the move, there was a significant disagreement, and a physical altercation between Ms Blanchard and the accused with respect to access to Trudi. Police were called. The accused was not able to exercise access on that day

81. Later that afternoon, Ms Blanchard’s sister arrived at her Sydney apartment with a truck and a number of members of the Church. With their assistance, the truck was loaded with Ms Blanchard’s belongings and then driven to her new address in Forster. The members of the congregation accompanied the truck to Forster, but in a separate vehicle.

82. Within about a week of Ms Blanchard moving to Forster, a number of members of the Church’s Lurnea congregation received telephone calls from an unidentified male seeking information about Ms Blanchard’s sister’s new address. These calls persisted for many weeks.

83. The members of the Lurnea congregation of the Church were accustomed to meet at the Kingdom Hall at Casula each Sunday morning for their weekly religious observances. Two other congregations, Liverpool and Casula, also used the Hall, but at different times. The Hall was rectangular in shape with a raised platform at one end of it. This platform was about 30cm above the ground. Behind the platform was a narrow corridor which ran behind a partition. Access underneath the platform was only available from this narrow corridor.

84. Early on the morning of Sunday 14 July 1985, a member of the Lurnea congregation arrived at the Hall in preparation for the weekly meeting. He was the first to arrive and noticed that a window in the southern side of the hall closest to the platform had been broken. The hole in the window was about 20cm in diameter. There appeared to be bloodstains on the concrete outside the building, on the window itself, on the curtains and on the carpet inside the Hall underneath the window.

85. A trail of apparent blood drops led from the window and into the Hall. The trail was followed where it led to the narrow corridor behind the stage. From the narrow corridor, the trail of blood drops led to a small storage area behind the platform which contained a number of flattened cardboard boxes. Nothing appeared to have been stolen.

86. The Sunday morning meeting commenced and continued without incident. After the meeting, the police were called and observed the blood trail. The following day, the broken window was replaced by a member of the Church.

87. When the accused arrived at work, at the Liverpool Fire Station, on the morning of Monday 15 July 1985, having had the previous few days rostered off duty, another fireman noticed a number of cuts to his face, which he described as being “puncture wounds”. One wound was on the accused’s forehead above his right eye, another was on the right-hand side of his face below his mouth and another on the left cheek. When asked, the accused gave an exculpatory explanation, which the Crown claims was false.

88. One week later, on Sunday 21 July 1985, the same member of the congregation who had arrived first on the previous Saturday also arrived first again. He noticed that the very same window as the one from the week before had been broken again. He did not notice any obvious trail of blood. The congregation member again checked the Hall to see if anything had been stolen and found that there had not been. He noticed that the bloodstains on the carpet under the window from the previous week were still visible.

89. About 100 churchgoers attended the meeting. It commenced at about 9.30am, which was the usual time. At about 10am, whilst a guest speaker was delivering a lecture from the platform, a large explosion took place from underneath the stage area. The explosion was powerful enough to destroy the Hall and to cause serious injury to many of the members of the congregation. One person who had been sitting in the middle of the Hall in the second row from the front was killed. Thirteen members of the congregation sustained grievous bodily harm.

90. It was determined that the explosive device had been placed underneath the stage.

91. In 1985, the blood that was discovered beneath the broken window and leading to the storeroom where it was found on cardboard boxes was tested and it was identified as being from blood group O, which was the blood group of the accused. No further scientific testing was then possible.

92. In 2013, a full DNA profile was obtained from the bloodstains on the carpet and the cardboard boxes in the storeroom which had been retained as possible exhibits by police. The Crown case is that the DNA profile obtained from those bloodstains matches that of the accused, to a very high degree of confidence.

93. Expert evidence determined that the type of explosive used was Molanite, which was manufactured by ICI. The same expert estimated that the quantity of Molanite used was 2kg. An ICI-manufactured No.6 Instantaneous Electric Detonator (“IED”) was used. The expert was also able to determine that a wind-up alarm clock had been used as part of the device, and that the particular alarm clock used was a Diamond brand, model 7807A. Further, he was able to determine that one of the components of the IED had been an Eveready 6 Volt No.509 battery. The expert determined that adjustments had been made to the clock so that when it reached a particular time, the electric circuit would be closed thereby activating the detonator and causing the explosive material to detonate.

94. About a year before the bombing, when the police searched the accused’s premises, they observed, and photographed but did not seize, an alarm clock that was on the accused’s kitchen bench. That alarm clock appears from photographs to be very similar to a Diamond brand, model 7809C (which was a different model from but the same brand as the 7807A, the one used in the Kingdom Hall bombing).

95. The Crown relies upon the fact that the accused made a number of statements to different people to the effect that he was of the view that Jehovah’s Witnesses were hiding his wife and child and his access to his child was being denied.

96. The Crown relies upon other circumstances to implicate the accused in this offence.

Statutory Framework

97. Before addressing the submissions of the Crown and counsel for the accused on these issues, it is convenient to set out the relevant provisions of the Evidence Act 1995 (NSW) (“Evidence Act”).

97   The tendency rule

(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)   Subsection (1) (a) does not apply if:

(a)   the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)    the evidence is adduced to explain or contradict tendency evidence adduced by another party.

98   The coincidence rule

(1)    Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)    Subsection (1) (a) does not apply if:

(a)    the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)    the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

101    Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1)    This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)    Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3)    This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)    This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

98. As well as these provisions, which deal specifically with tendency and coincidence evidence, it is relevant to note the provisions of s 137 of the Evidence Act which obliges a court to refuse to admit evidence from the prosecution in a criminal proceeding “… if its probative value is outweighed by the danger of unfair prejudice …” to the accused.

Coincidence Evidence

99. The Crown contends that the evidence in relation to each of the seven Events which I have earlier described, and which give rise to the 24 counts on the indictment is admissible as coincidence evidence, on all of the counts.

100. The Crown served two Coincidence Notices. The first relates to all seven events. The Notice includes the following statements:

“Notice is given that the prosecution presently intends to adduce ‘coincidence’ evidence pursuant to the coincidence rule in ss 98(1) of the Evidence Act 1995, i.e. evidence that two or more events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.

1.    The person referred to in the preceding paragraph is the accused, Leonard Warwick.

2.    The two or more events which are the subject of the proposed evidence are:

[Events 1 to 7 are identified]

…

6.   In relation to paragraph 2 above, the prosecution asserts that the following similarities exist in these events:

Similarities in the circumstances in which the events occurred:

●   The intended target had involvement in the Accused’s marital dispute with his ex-wife, Andrea Blanchard, concerning child custody and/or property, in a way that was adverse to the Accused’s interests in that dispute (Events 1-7).

●   The event occurred during the time when the Accused’s Family Court proceedings were on foot (Events 1-7).

●   The intended target made orders, or sought orders, or was the institution in which any such orders were made or sought, concerning child custody and/or property adverse to the Accused’s interests in the proceedings (Events 2-6).

Similarities in the events themselves:

●   The use of a bomb (Events 3-7).

●   The explosive substance used in the bombs was, or was consistent with, a commercially manufactured high explosive. More specifically, either Gelignite or Molanite (Events 3-7).

●   The bomb was made using a combination of Molanite and a No.6 instantaneous electric detonator manufactured by the company ICI before 27 May 1981 (Events 6 & 7).

●   A component of the bomb was a particular type of battery, namely an Eveready 6 Volt 509 battery (Events 5 & 7).

●   The use of a .22 calibre firearm (Events 1 & 2).

●   The event involved a violent attack committed with an intention to kill (Events 1-3 & 5-7).

101. A second Coincidence Notice was served on 22 June 2017. It only related to the Kingdom Hall bombing and the events which immediately preceded it, namely the earlier break in. The second Notice contained the following:

“Notice is given that the Prosecution presently intends to adduce coincidence evidence pursuant to the coincidence rule in ss 98(1) of the Evidence Act 1995, i.e. evidence that two or more events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.

1.   The person referred to in the preceding paragraph is Leonard Warwick.

2.   The two or more events which are the subject of the proposed evidence are:

Event 1:    The break and enter that occurred on the evening of 13-14 July 1985 at the Kingdom Hall at 2 Berbena Street, Lurnea; and

Event 2:   The break and enter that occurred on the evening of 20-21 July 1985 at the Kingdom Hall at 2 Berbena Street, Lurnea.

3.   The evidence is to be tendered to prove that Leonard Warwick did a particular act, namely:

●   broke and entered the Kingdom Hall on the evening of 20-21 July 1985.

…

6.   In relation to paragraph 2 above, the prosecution asserts that the following similarities exist in these events:

●   both events occurred sometime during the evening before a Sunday morning service.

●   both events occurred only seven days apart.

●   the intruder on each occasion gained entry to the building through the same window.

●   the intruder on each occasion did not steal anything.

●   the intruder on each occasion walked into a narrow corridor behind the stage area.”

102. The accused did not make any specific submission with respect to this second Notice. Such submissions as were made addressed the first Notice. Although counsel for the accused suggested that he, personally, may have only seen the second Notice on the morning of the hearing, no application was made to the Court to consider the Notice at a later time or date after any adjournment. No application was made for the Court to receive further written submissions from the accused in opposition to the Crown application for this second Notice. The second Notice adequately particularises the act or acts and the relevant period as the legislation requires. It gave entirely adequate notice. The only real issue is whether, by reference to the identified similarities, the coincidence evidence would, it admitted, have significant probative value and whether that probative value outweighs any prejudicial effect on the accused.

103. Having regard to the case which the Crown intends to bring with respect to Event 7, the Kingdom Hall bombing, and in particular the specific window that was broken each time, the time at which that occurred having regard to when the Lurnea congregation used the Kingdom Hall, and the fact that nothing was stolen or damaged on either occasion (except the window), and that on both occasions access was had to the narrow corridor at the back of the raised stage area, I am well satisfied that this evidence has substantial probative value as indicating that the accused carried out a reconnaissance of the Hall before carrying out the bombing on the next occasion that the Lurnea congregation was intending to use the Hall. Such probative value in my opinion substantially outweighs any prejudicial effect on the accused. I am also satisfied that the probative value outweighs any unfair prejudice to the accused as I am required to be by s 137 of the Evidence Act. Accordingly, the Crown will be permitted to lead evidence in accordance with the second Notice to prove that the accused broke into and entered the Kingdom Hall on the evening of 20 and 21 July 1985.

104. I will now deal with the first Coincidence Notice.

105. The Crown submits that “the circumstances in which the seven events occurred are substantially and relevantly similar”. In its submissions, it nominated the following similarities:

• The intended target had involvement in the accused's marital dispute with his ex-wife, Andrea Blanchard, concerning child custody and/or property, in a way that was adverse to the accused's interests in that dispute. (Events 1-7)

• The event occurred during the time when the accused's Family Court proceedings were on foot. (Events 1-7)

• The intended target was either the Family Court at Parramatta or its judges or legal practitioners who had direct involvement in the accused's Family Law proceedings. (Events 2-6)

• The intended target made orders, or sought orders, or was the institution in which any such orders were made or sought, concerning child custody and/or property adverse to the accused's interests in the proceedings. (Events 2-6).

106. The Crown described the seven events as a unique series of events which occurred in a defined time period, where a series of pre-planned and intentional crimes which exhibited a substantial degree of lethal violence were committed.

107. It articulated these matters as each, and in combination, all, demonstrating overwhelmingly that these seven events were not coincidental but were each part of a planned course of conduct. These matters were:

• In the period from mid-1979 to April 1986, there were Family Court proceedings on foot between the accused and his wife which were contested.

• The proceedings were being conducted in the Parramatta Registry of the Family Court.

• Prior to the shooting identified as Event 2, the Opas murder, there had not been a murder or an attempt to murder a sitting judge in Australia – at least during the whole of the 20th century (if not earlier).

• Including and after Event 2, and during the period of the accused’s Family Law proceedings, there were three events of an attempted murder on a sitting judge in the Parramatta Registry of the Family Court of Australia, and one of an attempt to destroy the Parramatta building of the Family Court.

• Each of these targeted judges had presided over part of the Family Court proceedings and made orders which were, or else were perceived to be, adverse to the interests of the accused in that litigation.

• The events did not continue after April 1986 when the accused’s Family Law proceedings were finalised.

108. The Crown submitted that viewed in this way, Events 2, 3, 4 and 5 are highly unlikely to have been anything other than a deliberate course of connected conduct carried out by the same criminally-minded person.

109. The Crown submitted that the features of Events 1, 6 and 7 are also to be explained by a connection between the individuals who were targeted in these events, because they were people who had sided with, or supported, Ms Blanchard in her Family Court proceedings against the interests of the accused. The consequence of providing such support was to be the target of pre-planned and intentional violence, of a high order.

110. In the case of each of the events, the Crown submitted that one person could have carried out each event, that is, none of the conduct in the seven events required more than one person to carry it out. As well, the Crown’s case includes the fact that the accused, a fireman who worked on a variable roster, was not on duty during the material times of these events.

111. It is appropriate to note that the Crown’s submissions proceed correctly on the basis that the accused accepts that each of the seven events outlined by the Crown occurred and that those events involved a number of criminal offences. For example, counsel for the accused informed the Court that the accused would not put in issue that Justice Opas was shot and killed by a person who intended to kill him and, accordingly, that the offence of murder was established. In short, there will not be any dispute about the facts which established that each of the events occurred.

112. However, the accused’s counsel made it plain to the Court on 3 March 2017, that it was in issue that:

1. the accused carried out any of the offences arising from Events 1 through to 7 inclusive;

2. the accused was in any way at all concerned in, or legally responsible for, any of the events, and any of the offences arising from those events;

3. the accused had sufficient knowledge or expertise to have carried out the offences alleged; and

4. having regard to the facts and technical aspects of what occurred, the accused was not capable of committing the offences.

113. The Court should proceed in this judgment on the basis that the Crown will establish that the offences were committed, but that the real issue for the jury will be whether the accused is the perpetrator of each of the crimes.

114. On the issue of similarity, the Crown accepts that whilst the method of violence is not similar across all seven of the events, it nevertheless submits that what is similar is that the events all involved a high order of violence clearly intended to kill or cause grievous bodily harm to an identifiable group of individuals and institutions.

115. Hence, the Crown submitted that “[i]n each case the conduct involved the targeting with violence of an individual or an institution who had acted in such a way as to adversely affect the accused’s access to his daughter”. It is this combination which the Crown argues demonstrates both the unusual nature of the offence, and such a compelling degree of similarity as to make the course of these events unique, and highly unlikely to be events which were coincidences.

Submissions of the Accused

116. The accused submitted that the Crown’s argument about coincidence evidence is circular because “it begs the very question that the coincidence evidence is adduced to prove”.

117. The accused also pointed out that there is no evidence identifying the accused as being responsible for any of the seven events, and that the key fact in issue is whether he was responsible for any one of the seven events.

118. The accused submits that, as a result, the Crown’s first Coincidence Notice assumes that the accused committed the seven acts and then seeks to rely upon each event as coincidence evidence to prove that the accused committed each other event. Hence, the accused submits that the Crown’s submissions contravene the principle articulated by Simpson J (as her Honour then was) in R v Gale; R v Duckworth [2012] NSWCCA 174 at [37]-[38], where her Honour held that “similarities for the purposes of s 98 must be capable of proof by means other than the ‘facts’ sought to be established.”

119. The accused further submitted that none of the “similarities” satisfy the requirement in s 98(1) that it “is improbable that the events occurred coincidentally” and therefore that they fail the test in s 98(1)(b) that “the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value”.

120. The accused also submitted that the test in s 101, namely, that coincidence evidence “cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” would rule out the evidence. The accused also pointed to the requirement established by IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [37]-[38] that coincidence evidence must be found to be relevant before it can be used as coincidence evidence.

121. Lastly, the accused submitted that the coincidence evidence ought not be admitted since it falls foul of s 137 because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.

Coincidence Evidence Legal Principles

122. Simpson J’s judgment in R v Gale; R v Duckworth sets out the appropriate steps to be followed by a court considering the admission of coincidence evidence at [32] as follows:

1. the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;

2. the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";

3. the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;

4. the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);

5. the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";

6. in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)).

123. From other authorities the following additional principles can also be identified with respect to coincidence evidence:

1. the availability of coincidence reasoning is not displaced by the fact that two (or more) events bear some dissimilarities, although dissimilarity may undercut the improbability of something being a coincidence: Selby v R [2017] NSWCCA 40 at [24]-[27]; El Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 43 at [74];

2. in considering coincidence reasoning, it is necessary to give consideration to the evidence as a whole rather than to consider separately each particular circumstance relied upon: R v Matonwal & Amood [2016] NSWCCA 174;

3. similarity is not an absolute concept, but rather is a relative one which can encompass varying degrees of similarity. Ultimately, the evaluation to be undertaken is whether the evidence has “significant probative value”. In that evaluation there is no need for the Crown to establish a “striking similarity” or a “a striking pattern of similarity between incidents”: Saoud v R [2014] NSWCCA 13; (2014) 87 NSWLR 481 at [39]ff;

4. in considering whether the evidence sought to be admitted has significant probative value, the Court is entitled to have regard not merely to that evidence, but also to all of the evidence to be adduced at the trial: Glover v R: Stuart v R [2015] NSWCCA 285 at [119]; and

5. in considering coincidence reasoning, it is permissible for a jury to be satisfied of the guilt of an accused on a later offence, and then to work backwards so as to be satisfied of the guilt of the accused for an earlier offence: Glover at [99].

Discernment

124. It is convenient to proceed with the consideration of the competing submissions by considering the need for satisfaction of each of the steps identified by Simpson J in Gale: see [122120].

125. The Crown identifies the accused as the person who carried out each of Events 1 to 7, thereby committing each of the offences charged in the Indictment. Secondly, the Crown identifies by reference to each separate event, that the two or more events relied upon are each of the Events 1 to 7. The accused does not dispute that the Crown has adequately identified these first two necessary steps.

126. In addressing the third requirement for the admissibility of evidence pursuant to s 98 of the EvidenceAct, in its submissions the Crown identified similarities in the events and in the circumstances. In addition to those similarities being contained in the Notices to which reference has been made, the similarities have been generally described in paragraphs [105]-[107] above.

127. The accused submitted that the dissimilarities are such that these similarities are inadequate to ground coincidence reasoning. The dissimilarities that the accused points to include that Events 1, 6 and 7 do not fall within the unifying description given of attacks on members of the Family Court and the Court itself. In respect of Event 1 (the murder of Stephen Blanchard), the accused submitted that the only obvious connection with any other event was that in Events 1 and 2, a .22 firearm was used. But, as the accused submitted, there was no suggestion that the same firearm was used for the two murders in Events 1 and 2. As well, the accused pointed to the fact that in some of the events a firearm was used but in other events a bomb was used. Even then the accused pointed to the fact that the bombs were not identical, and that the Crown did not assert that the explosive used in each case was identical. The accused pointed to the fact that where bombs were used, the method of initiating the explosions was different.

128. As counsel for the accused put it:

“So the explosive substance is not uniform, the method of detonation is not uniform, the detonators are not uniform. And in relation to the electrical device used to detonate, a household battery is not at all uncommon and, of course, the evidence is that, like the number 6 detonator, the Eveready battery was ubiquitous. Everyone had one. The market was flooded with them.”

129. I am satisfied that the Crown has identified, both in its Notice and in its submissions, similarities of a kind which make it fundamentally unlikely that these events occurred coincidentally. On the material available in the Crown case, Events 1, 6 and 7 have a demonstrated similarity with, and connection to, the Family Law proceedings in which the accused and Ms Blanchard were engaged. As well, the time at which each of Events 1, 6 and 7 occurred, and the absence of any events of violence occurring after the final resolution of the Family Court proceedings, strongly point to a connection between each of the Events and the similarities which the Crown has submitted are to be found.

130. In my view, the inference which the Crown would invite the jury to draw – that the existence of the common features and similarities identified could not be explained by coincidence – is a powerful one. These are all offences of violence against people which were and were intended to be, lethal. Event 5 does not necessarily include an identified individual as the target but, having regard to the location of the building, the nature and location of the explosive device which was placed there and the prospect that the building would collapse causing harm to any individual in or near the building, serious harm was clearly within the reasonable contemplation of the person placing the explosive device. On any view, such serious harm was reasonably foreseeable.

131. It is correct for the accused to identify and highlight a number of facts which indicate differences in the crimes concerned. Inevitably, as crimes vary in time and place, there will always be differences or dissimilarities. The dissimilarities which have been identified do not in any assessment so detract from the similarities identified that the Court should conclude that the Crown has not adequately identified similarities capable of demonstrating the absence of coincidence.

129. Fourthly, I need to be satisfied whether reasonable notice has been given of the Crown’s intention to adduce the coincidence evidence. I am so satisfied. The first Coincidence Notice together with the submissions made by the Crown is more than adequate to constitute reasonable notice. The commencement of the trial is many months in the future. The accused has not submitted otherwise.

130. Fifthly, it is necessary to make an evaluation of whether the evidence will, by itself or in conjunction with other evidence, have significant probative value. In making this assessment, one needs to keep in mind all of the evidence which it is proposed to tender, and including such dissimilarities as may be identified.

131. On the material before the Court, the Crown’s case against the accused on the charge arising from Event 7 is a strong and compelling one. On the first occasion, blood from the accused is found immediately below a smashed window, and by following the blood trail, it is apparent that the accused has gone along a narrow passageway behind a raised podium and into a potential hiding place, namely a storeroom. At a similar time, one week later, access has been gained through the same window, the rear of the podium has been accessed from the narrow passageway and a bomb placed beneath the podium, and activated during a meeting of the Lurnea congregation on the Sunday morning. A clear motive can also be established for the happening of Event 7, namely that the accused detonated a device intending to cause, at least, really serious physical injury, to a group of people amongst whom were people who had assisted his former wife in taking steps adverse to him with respect to access his daughter. They had done this by assisting his wife and daughter to move away from Sydney to an address which they would not divulge.

132. This strong connection of the accused to Event 7, and its relationship to the Family Court proceedings as just described, provides very strong probative evidence of the accused’s involvement with each of those earlier events. The fact that the perpetrator of each event had resorted to use of a high level of lethal violence in each event, namely the use of a firearm or an explosive, outweighs in any evaluation the fact that the method used in each case was not identical. As noted above at [123], it is not necessary for the Crown to establish a “striking similarity” or a “striking pattern of similarity”. I am persuaded that the similarities relied upon by the Crown, and as earlier described, would readily fall within the description that the evidence proposed to be led by the Crown as coincidence evidence “… should make it more likely to a significant extent, the facts that make up the element of the offence charged”: R v Ford [2009] NSWCCA 306 at [125] per Campbell JA. It cannot seriously be gainsaid that attacks of such violence and lethality, in a period defined by the existence of particular Family Court proceedings, on judges sitting in the Parramatta Registry of the Family Court, and on others who can be seen to be associated with the proceedings in the Registry, and the Family Court building itself, were fundamentally unlikely to have been committed randomly by different individuals. Put differently, the likelihood that all of these attacks were carried out by a single individual is very high. I am well satisfied that the Crown has established the significant probative value of the evidence.

133. I am satisfied for present purposes that the Crown has demonstrated that it is improbable that each of Events 1 to 7 occurred by coincidence and that there is sufficient similarity or connection between the events to support an inference that the events did not occur coincidentally.

134. Having considered all of the facts, including the dissimilarities identified by counsel for the accused, I have reached the conclusion that the evidence of each of the Events has significant probative value with respect to the evidence of the specific event being considered. To make that clear, I am satisfied that if the jury were being asked to consider the evidence with respect to Event 3 with the evidence with respect to Event 7, it would have significant probative value in identifying the perpetrator of that event. I am of the same view with respect to each of the other events.

135. The significant probative value comes from the circumstances of time, namely the period limited by the accused’s Family Court proceedings, and the connection between the ultimate target (or targets) of each Event with the Family Court proceedings. Finally, the significant connection is the use of an extreme form of violence, i.e. a firearm or an explosive device, to carry out the Events.

136. As I have earlier indicated, the accused will not put in issue that each of the Events occurred and that the perpetrator of each Event had the requisite mental element to fulfil the offence charged. What the accused has put in issue is whether he is the perpetrator of each of the Events and whether it can properly be said that each of the Events was perpetrated by the same individual. The nature of each of the Events, the timing of them, the intended target and the use of a high level of violence are all factors which carry with them a significant probative value with respect to those issues.

137. Finally, it is necessary for the Court then to consider whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

138. The accused did not submit that there was any particular feature of the evidence to be adduced which carried with it particular prejudice. By that I mean that the accused did not suggest that one or other exhibit relating to one or other Event was itself so prejudicial that it ought not be admitted as part of the evidence of all of the other Events. As well, this is not a circumstance where the coincidence evidence would reveal the existence of another offence unrelated to this sequence of events, but which carried with it particular prejudice. Whilst ever the offences all remain on a single indictment, any prejudice arising from the adducing of evidence of uncharged acts does not exist.

139. Rather, the accused submitted that the combination of all of the evidence of each Event being admitted with respect to guilt of each of the offences carried with it the prejudice that the jury would be overwhelmed by the magnitude of the conduct alleged and take the view that the accused was guilty of each offence without rationally or carefully considering each offence separately.

140. This consideration of whether, from the perspective of s 101 of the Evidence Act, the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant, proceeds on the basis that a jury will be properly directed by the trial Judge as to the applicable law with respect to their reasoning, and will apply those directions during its deliberations.

141. Inevitably, there is a degree of prejudice from the coincidence evidence. That is because it tends to prove the guilt of the accused. But that is not the prejudice to which s 101 is directed.

142. In dealing with s 101(2), in R v MM [2014] NSWCCA 144, the NSW Court of Criminal Appeal observed with respect to the prejudicial effect of evidence upon an accused, at [43] that it:

“… must be understood as substantially the same as that to be considered under s 137 … the prejudice must be the risk of harm to the interests of the accused in a way that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way, such as provoking some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves.”

146. I am wholly unpersuaded that the evidence of each of Event being tendered on the issues to be joined would be in any way misused by a jury, nor do I think that in the circumstances here it would be used inappropriately by giving it undue weight or that it would cause or provoke any irrational or illogical response. Particularly is this so because the central disputed issue is whether the perpetrator of the crime is the accused.

147. I am satisfied that the significant probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

148. The accused also relied upon the provisions of s 137 of the Evidence Act as a barrier to the admissibility of the coincidence evidence. He submitted, consistently with his submissions with respect to s 101, that the probative value of the evidence was outweighed by the damage of unfair prejudice to the accused. This requires an evaluative judgment which may, depending on the outcome, mandate the exclusion of the evidence: IMM v The Queen at [16] per French CJ, Kiefel, Bell and Keane JJ agreeing.

149. As earlier noted, unfair prejudice may result from some particular quality which may cause a jury to react irrationally or illogically and which may cause it to give the evidence more weight in the jury’s assessment than it warrants: R v Dickman [2017] HCA 24; (2017) 91 ALJR 686 at [48]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [22] per Gleeson CJ.

150. My earlier analysis of the prejudicial effect of the coincidence evidence, weighed against its probative value for the purpose of s 101(2), enables me, without further explanation, to conclude that s 137 does not mandate the exclusion of the coincidence evidence. That is because the probative value significantly outweighs any danger of unfair prejudice.

151. Accordingly, I conclude that the evidence as described in the first Coincidence Notice which is proposed to be adduced by the Crown as coincidence evidence is admissible and the Crown is entitled to adduce it.

Tendency Notice

152. On 22 June 2017, the Crown served a Tendency Notice. The Notice included statements to the following effect:

“Notice is hereby given that the Prosecution presently intends to adduce evidence of ‘tendency’ pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, i.e. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because the person’s character or otherwise) to act in a particular way or to have a particular state of mind.

1.   The person whose ‘tendency’ is the subject of the evidence sought to be adduced is Leonard Warwick.

2.   The tendency sought to be proved is his tendency to act in a particular way and to have a particular state of mind, as follows:

Tendency to act in a particular way:

•   To commit violence against individuals or institutions who act in such a way as to adversely affect the Accused’s access to his daughter.

Tendency to have a particular state of mind:

•   To hold animosity towards individuals or institutions who act in such a way as to adversely affect the Accused’s access to his daughter, where such animosity, in the case of individuals, includes an intention to kill.

3.   …

4.   …

5.   …

6.   In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue:

Whether or not the Accused did the following:

-   Murdered Stephen Blanchard;

-   Murdered Justice David Opas;

-   Bombed Justice Gee’s home;

-   Bombed the Family Court building at Parramatta;

-   Bombed the home of Justice Raymond Watson;

-   Planted the car bomb at the former home of Garry Watts.”

153. Curiously, the Notice did not include a statement that the tendency evidence sought to be adduced bore upon the facts relating to whether the accused was responsible for the Kingdom Hall bombing.

154. This seems to have been an accidental omission. Certainly in the course of their written and oral submissions the parties did not seek to differentiate with respect to the Tendency Notice between the first six events and the seventh event. I propose to deal with the matter in accordance with the way in which the parties approached it.

155. The accused’s challenge to the admissibility of the tendency evidence was a limited one. He submitted that the articulation of the relevant tendencies both as to actions and a state of mind was so vague and general as to be meaningless.

156. The question is whether the tendencies identified in the Tendency Notice, namely to act in a particular way, i.e. to commit violence against individuals or institutions who acted adversely against the accused in his Family Court proceedings, and to have a particular state of mind, namely to hold animosity towards such individuals as fully described in the Tendency Notice, are capable of having significant probative value on the accused’s trial for offences of violence of the kind charged on the Indictment arising from the events covered by the Indictment. Where what is in issue is the identity of the offender, I am satisfied that evidence of the tendencies identified would have the capacity to have significant probative value at the trial. The person who has carried out the events which gave rise to the counts on the Indictment was a person with a tendency to violence, and it would be open to the jury to conclude that such a person had the state of mind tendency as well.

157. The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue – see Evidence Act dictionary. Tendency evidence would have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: IMM v The Queen at [46]; Hughes v The Queen [2017] HCA 20 at [16].

158. The offences charged are ones of significant violence against individuals or, in the case of Event 4 the Family Court building. It seems to me that if the accused is shown to be a person who has the state of mind identified, namely to hold animosity towards individuals or institutions as explained, or has a tendency to act in a particular way, namely to commit acts of violence in the way identified, then that tendency would be influential in proving that he carried out each of the offences charged.

159. The submission of the accused is that the tendency described in the Tendency Notice is vague. But there is a need to concentrate on the nature of the evidence itself. As the High Court said in Hughes at [39] (Kiefel CJ, Bell, Keane and Edelman JJ):

“The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings, where it is adduced to prove the identity of the offender for a known offence, the probative value of the tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.”

160. The tendency described in the Tendency Notice, here to act in a particular way, is clear and unambiguous. It is not in my assessment, and having regard to the nature of the charges and the facts and circumstances to be proved in the Crown case, incapable of being applied by a jury, subject to appropriate directions being given, in any inappropriate way. The tendency to have a particular state of mind is in the same category. It is reasonably precisely defined, and unlikely to be misused by a jury.

161. I am not persuaded that the articulation of the tendency is so vague or general as to lack effect. I am persuaded that the evidence is admissible because, for the reasons earlier articulated with respect to coincidence evidence, the significant probative value of the tendency evidence manifestly outweighs the prejudicial effect of it.

Severance of Charges on the Indictment

162. The accused made application orally for the various offences in the Indictment to be severed so that the indictment could be divided into seven separate indictments, reflecting the offences associated with each of the seven Events which I have earlier described.

163. In putting all of the charges into the Indictment, the Crown relies on s 29(1) of the Criminal Procedure Act (1986) (NSW) (“Criminal Procedure Act”) which allows a court to hear and determine proceedings relating to two or more offences alleged to have been committed by the same accused person where the offences arise out of the same set of circumstances, or the offences form part of a series of offences of the same or similar character. The Crown relied on the fact that these offences form part of a series of offences of the same or similar character.

164. The accused submitted, relying on s 29(3) of the Criminal Procedure Act, and also s 21 of the Act, that it is in the interests of justice for the offences to be separated into seven separate counts because it is likely that the jury would be overwhelmed by the enormity of the task with which they would be confronted in dealing with each offence on the Indictment, and with having to deal individually with the offences relating to each of the seven separate events.

165. In those circumstances, the accused does not directly submit that he would be prejudiced or embarrassed in his defence by reason of the charges remaining on the Indictment but rather that it is desirable that the accused person be tried separately with respect to each event.

166. I have concluded that the evidence in respect of each Event is admissible both as coincidence and tendency evidence with respect to each other Event.

167. The accused submitted that if the Court came to that conclusion, that nevertheless, the counts on the Indictment ought be separated. In making that submission the accused acknowledged that the evidence with respect to all of the events would be before the jury with respect to each individual Indictment.

168. However, the accused maintained his submission that, even in such circumstances, requiring the jury to deliberate on, and return verdicts with respect to, 21 offences and three alternative offences if it became necessary to consider those, would present the jury with an overwhelmingly large and unwieldy task. Ultimately, the accused submitted that the effect of all of this would be that the jury would be constrained in the face of such overwhelming weight to find the accused guilty on each of the counts in the Indictment.

Legal Principles

169. In Symss v The Queen [2003] NSWCCA 77 at [68], Sheller JA (with whom James J and Smart AJ agreed) said:

“The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprise as being jointly tried so as to avoid inconsistent verdicts.”

170. Whilst there is no issue here of any common enterprise, the remarks of Sheller JA would logically extend to the desirability of a series of offences alleged to have been committed by a single accused being tried together so as to avoid inconsistent verdicts.

171. In R v Ceissman [2010] NSWCCA 50, Latham J (with whom McClellan CJ at CL and Schmidt J agreed), when dealing with a question of severance of counts on indictment, said at [21]:

“The interests of justice are not referrable solely to the interests of the [accused]: …: see Samadi andDjait v R [2008] NSWCCA 330 at [108].”

172. Hunt J (Wood and Campbell JJ agreeing) said in Verma v R (1987) 30 A Crim R 441 this at 443:

“The most straight forward case in which separate trials will not be ordered is where the evidence admissible on the trial of one charge is in any event admissible on the trial of the other, by way (for example) of similar facts.”

Discernment

173. The submissions of the accused on this issue were limited. In essence, what the accused submitted was that it would be an unreasonable burden on the jury, and it would be likely to overwhelm them if, they were obliged to consider and return verdicts on a possible maximum of 24 counts at the end of what will necessarily be a lengthy trial. The accused did not articulate why it was that the burden would be of that kind in circumstances where the jury was being invited to consider the coincidence and tendency evidence, in accordance with the Court’s directions as to the proper use which may be made of that material, with respect to the guilt of the accused for each Event.

173. Putting it differently, the whole of the evidence about each of the Events will be before the jury. They will have to consider it and its probative value, whether they are considering the counts on the Indictment relating to the one Event or for each Event.

174. The only real difference as it seems to me, is the additional element of the jury having to consider counsel’s arguments, the trial Judge’s directions about, and the issue of the guilt or innocence of the accused on each count, rather than on the counts limited to one Event.

175. I am not satisfied that that burden is an unreasonable one, nor am I satisfied that that additional consideration would be likely to result in any additional prejudice to the accused.

176. But more particularly, even if there was some prejudice to the accused, the Court needs to consider whether the severance of the Indictment into seven separate indictments, is in the interests of justice. What would confront the Court in those circumstances, were the accused’s application to succeed, and in light of my ruling with respect to the admissibility of the coincidence and tendency evidence, is seven lengthy trials each of which would involve the adducing of evidence about all seven events which occurred in the period between 1980 and 1985. Many witnesses would be required to give their evidence on seven separate occasions about the same facts and matters. No doubt, having regard to the time which has elapsed since these offences were alleged to have been committed, many of the witnesses will be old and it would be an intolerable burden for them to have to give their evidence seven times.

177. As I have earlier remarked, the trial is a long one. The present estimates suggest about six months. Whilst, if the only counts on the Indictment were those relating to each Event separately, it might be thought that the trials would be considerably shorter, having regard to the fact that all of the evidence with respect to all of the Events would be led by the Crown, I cannot see that any trial with respect to any individual Event, and the charge relating to it, would finish in much less than three months.

178. The burden of seven three-month trials on the Court, or even seven lengthy trials of many, many weeks (even if less than three months), is also not in the interests of justice. It would be a very significant call on the available judicial resources, and would not be in the interests of justice.

179. Taking all of those matters into account and undertaking the evaluative exercise which is necessary, I am wholly unpersuaded that it is in the interests of justice that the counts on the Indictment ought be severed, and that the Crown ought be obliged to present seven different Indictments dealing with the offences relating separately to each of the seven Events.

Orders

181. I make the following orders:

1. The Crown is permitted to lead the coincidence and tendency evidence described in the three Notices served on 22 June 2017.

2. The accused’s oral application for separate trials is rejected.

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Amendments

18 February 2020 - Suppression order lifted on 14 February 2020.

Decision last updated: 18 February 2020