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R v Warwick (No.33)

R v Warwick (No.33)

Case [2018] NSWSC 1219 9 August 2018

Admissibility of Evidence

Expert Evidence

Hearsay

Business Records Exception

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.33) [2018] NSWSC 1219
Hearing dates: 16 July 2018
Date of orders: 16 July 2018
Decision date: 09 August 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Copy of Family Court file admitted.
(2) Evidence of Justice Garry Watts permitted to be led.
Catchwords:
EVIDENCE – criminal proceedings – opinion evidence – where witness is a Family Court judge with extensive prior experience as a solicitor – where witness was personally involved in Family Court proceedings relevant to the present criminal proceedings – where witness had not adopted the Expert Witness Code of Conduct in UCPR Schedule 7 – witness otherwise qualified by his training, study and experience to provide an opinion on the conduct of family law proceedings – opinion evidence admissible under Evidence Act, s 79

EVIDENCE – hearsay – whether file from previous Family Court proceedings should be admitted – where Crown case on alleged motive is linked to Family Court proceedings – business records exception – Evidence Act 1995, s 69 – evidence also relevant for a non-hearsay purpose – Evidence Act 1995, s 60 – file admitted as evidence – order made limiting use to non-hearsay use – Evidence Act 1995, s 136
EVIDENCE – whether evidence of various Family Court judgments should be excluded – Evidence Act 1995, s 91 – where judgments are relevant for another purpose
Legislation Cited: Evidence Act 1995
Family Law Act 1975
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure (Amendment No 82) Rule 2016
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No.4) [2008] FCA 1038; (2008) 170 FCR 9
Averkin v Insurance Australia Ltd [2016] NSWCA 122; (2016) 92 NSWLR 68
Chen v R [2018] NSWCCA 106
Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67
R v Adams (No 5) [2016] NSWSC 1563
R v Warwick (No.24) [2018] NSWSC 691
Vitali v Stachnik [2001] NSWSC 303
Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

File Number(s): 2015/222068
Publication restriction: Not Applicable

Judgment (T.127)

In the course of the evidence of the Honourable Justice Garry Watts, the Crown tendered two volumes consisting of an indexed, tabbed, chronological copy of the original file of the Family Court of Australia kept in relation to the proceedings in that Court between…

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.33)

Details

AGLC: R v Warwick (No.33) [2018] NSWSC 1219
Case: [2018] NSWSC 1219
Decision Date: 09 August 2018

CaseChat Overview and Summary

The case of R v Warwick (No.33) was heard by the Supreme Court of Victoria. The defendant, Warwick, faced criminal charges, and the court was required to determine the admissibility of various pieces of evidence. This included opinion evidence from a Family Court judge, evidence from previous Family Court proceedings, and various Family Court judgments.

The primary legal issues revolved around the admissibility of opinion evidence provided by the Family Court judge, the admissibility of a file from previous Family Court proceedings, and the relevance and admissibility of various Family Court judgments. The court needed to determine whether the Family Court judge's opinion was admissible under section 79 of the Evidence Act 1995, whether the file from previous Family Court proceedings could be admitted under the business records exception in section 69 or for a non-hearsay purpose in section 60, and whether certain Family Court judgments should be excluded under section 91.

The court found that the opinion evidence from the Family Court judge was admissible under section 79 of the Evidence Act 1995, as the judge was qualified by his extensive training, study, and experience to provide an opinion on the conduct of family law proceedings. The file from previous Family Court proceedings was admitted as evidence under the business records exception in section 69, with an order made limiting its use to non-hearsay purposes under section 136. The court also found that certain Family Court judgments were relevant for another purpose and were therefore admissible under section 60 of the Evidence Act 1995.

In conclusion, the court allowed the opinion evidence from the Family Court judge, the file from previous Family Court proceedings, and certain Family Court judgments to be admitted as evidence in the criminal proceedings against Warwick. The court's reasoning was based on the provisions of the Evidence Act 1995, ensuring that the evidence was relevant and admissible for the purposes of the case.

Orders