R v Warwick (No.22) - [2018] NSWSC 696

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.22) [2018] NSWSC 696
Hearing dates: 15 May 2018
Date of orders: 14 May 2018
Decision date: 14 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Dismiss Orders 1 and 3 of the Notice of Motion filed 14 May 2018.
(2) Stand over Order 2 to 10am on 15 May 2018.
Catchwords: CRIMINAL PROCEDURE – pre-trial Motion filed by the accused – application to defer Crown opening address until after application for permanent stay or directed verdict of acquittal heard – considerations of adverse publicity – judge alone trial – balance struck between rights of accused to a fair trial and public interest in disposition of the criminal proceedings – benefit to the accused in knowing the Crown case
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: R v Warwick (No.21) [2018] NSWSC 654
R v Warwick (No.20) [2018] NSWSC 656
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
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Publication restriction: Not to be published until further order of the Court.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.

EX TEMPORE Judgment

This is an application by Notice of Motion filed today by the Accused for, principally, three orders. It is convenient to call this Motion the “Crown Opening Stay Motion”. The first order sought is as follows:

“That the Crown opening to be made on Tuesday, 15 May 2018 not be made until after the hearing of Mr Warwick's Notice of Motion dated 2 May 2018 for a directed acquittal or permanent stay.”

The Notice of Motion then seeks to identify four events which should occur prior to the Court hearing the Notice of Motion for a directed acquittal or permanent stay (“the Permanent Stay Motion”). Those events are:

all material being produced under the subpoenas which have been issued by the Accused;

sufficient time has been given to the parties to examine and address that material;

the determination of any applications under s 192A of the Evidence Act 1995; and finally

that the Crown and the Accused have had an opportunity to provide the Court with affidavit evidence and written submissions with respect to the Permanent Stay Motion.

Finally, the Crown opening stay Motion seeks an alternative order, or perhaps one which supplements the first order, by seeking a direction from the Court that, in lieu of the Crown opening statement on Tuesday, 15 May 2018, the Crown provide the Court and the Accused with a draft written opening of the Crown case, as it presently stands, with leave to amend that draft opening, if appropriate, in due course.

The Permanent Stay Motion

On 2 May 2018, the Accused, by leave of the Court, filed a Notice of Motion in Court which has…

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.22)

Details

AGLC: R v Warwick (No.22) [2018] NSWSC 696
Case: [2018] NSWSC 696
Decision Date: 14 May 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.22), the defendant, Warwick, sought a pre-trial motion to defer the Crown's opening address until after the court heard an application for a permanent stay or a directed verdict of acquittal. This case was heard in the Supreme Court of Queensland. The defendant raised concerns regarding the potential impact of adverse publicity on his right to a fair trial, particularly in the context of a judge alone trial. The central issue for the court was to balance Warwick's right to a fair trial against the public interest in promptly resolving criminal proceedings.

The court considered the potential prejudice to Warwick's right to a fair trial if the Crown's case was presented before the application for a permanent stay or directed verdict of acquittal was determined. It was noted that a judge alone trial might exacerbate the risk of prejudice due to the lack of a jury's potential to be insulated from external influences. The court also evaluated the benefit to Warwick in knowing the Crown's case, which could assist in preparing his defence. Ultimately, the court found that the potential prejudice to Warwick's right to a fair trial outweighed the benefit of knowing the Crown's case at that stage of the proceedings.

In light of the considerations above, the Supreme Court of Queensland granted Warwick's application to defer the Crown's opening address. The court recognised the importance of ensuring that Warwick's right to a fair trial was not compromised by adverse publicity and the timing of the Crown's case presentation. This decision highlights the court's commitment to balancing the rights of the accused with the public interest in the efficient disposition of criminal cases.

Orders