R v Warwick (No.25) - [2018] NSWSC 742

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.25) [2018] NSWSC 742
Hearing dates: 30 April 2018, 1 May 2018, 2 May 2018
Date of orders: 10 May 2018
Decision date: 10 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Dismiss the Notice of Motion filed by the Accused on 8 February 2018.
(2) Dismiss the Notice of Motion filed by the Accused on 8 May 2018.

Catchwords:
CRIMINAL LAW – evidence – tendency and coincidence evidence – where evidence has significant probative value – role of trial judge – consideration of Evidence Act 1995, ss 97 and 98 – effect of Criminal Procedure Act 1986, ss 130 and 130A

CRIMINAL PROCEDURE – application by accused to sever counts on the indictment – where prior ruling refusing severance – application of Criminal Procedure Act 1986, s 130A – whether it would not be in the interests of justice for that previous ruling to be binding – where new evidence served by Crown – challenges to accuracy of one Crown case statement in evidence
CRIMINAL PROCEDURE – application by accused to call three witnesses before trial for cross-examination – tendency and coincidence evidence sought to be led by Crown – alleged insufficient probative value
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.5) [2018] NSWSC 70
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

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Publication restriction: Not to be published until further order of the Court.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

Judgment

On 3 March 2017, the Accused, Leonard John Warwick, was arraigned on an Indictment, dated that day, which consisted of 24 counts arising from seven separate events of alleged criminality (“the Events”).
To each count, he pleaded not guilty. A trial had been fixed to commence on Monday 14 May 2018. It in fact commenced on Tuesday 15 May 2018. It is presently estimated that over 250 witnesses will be called in the Crown case, and that the trial will last for at least six months. That time will be considerably extended if the Accused calls evidence in his case. The effect of any such extension on the length of the trial cannot be presently determined.
In order to ensure that the trial is ready to commence on the date fixed and to minimise interruption to the trial once it commences, the Court has, since February 2018, been engaged in the disposition of all pre-trial Motions.
In the course of these pre-trial hearings, the Court had before it for determination the two Notices of Motion described below.
On…

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.25)

Details

AGLC: R v Warwick (No.25) [2018] NSWSC 742
Case: [2018] NSWSC 742
Decision Date: 10 May 2018

CaseChat Overview and Summary

The case of R v Warwick (No.25) involved the Crown prosecuting the accused on multiple counts related to serious criminal activities. The accused sought to sever counts on the indictment, challenging a previous ruling which had refused severance. The court was required to consider the application of sections 130 and 130A of the Criminal Procedure Act 1986, determining whether it would be in the interests of justice to maintain the binding nature of the prior ruling. Additionally, the accused requested to call three witnesses before trial for cross-examination, arguing that the Crown's tendency and coincidence evidence lacked sufficient probative value. The court's task was to evaluate the application of sections 97 and 98 of the Evidence Act 1995 in the context of these requests.

The court examined the relevance of the Crown's evidence, particularly focusing on the probative value of tendency and coincidence evidence. It considered whether the evidence was significant enough to warrant the witnesses being called for cross-examination prior to the trial. The court also assessed the accused's application to sever counts, weighing the interests of justice against the previous ruling. The role of the trial judge in balancing these factors under the statutory framework was pivotal. The court had to determine whether the new evidence served by the Crown and the challenges to the accuracy of one Crown case statement were sufficient to warrant a reconsideration of the severance issue.

In its decision, the court found that the probative value of the evidence did not meet the threshold for permitting the witnesses to be called for cross-examination before the trial. The court concluded that the previous ruling on severance should remain binding, as altering it would not serve the interests of justice given the circumstances. The court emphasised the importance of the trial judge's discretion in such matters, particularly when considering the impact on the fairness and efficiency of the trial process.

The final orders of the court maintained the integrity of the prior ruling on severance and denied the accused's application to call witnesses for pre-trial cross-examination. The court's decision underscored the importance of the statutory framework in guiding the trial judge's discretion, ensuring that the interests of justice were upheld in the context of the evidence and procedural fairness.

Orders