R v Warwick (No.34) - [2018] NSWSC 1242

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.34) [2018] NSWSC 1242
Hearing dates: 8 August 2018
Date of orders: 08 August 2018
Decision date: 08 August 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Permit the Crown to lead the evidence of Detective Sergeant Harkins as set out in his statement signed 17/1/2018, except that I do not permit the Crown to lead, as part of the evidence-in-chief of Detective Sergeant Harkins, the following parts of his statement dated 17/1/2018:
(a) section E comprising paragraphs 30-48 inclusive; and
(b) all attachments to the statement from immediately after page 22 to the end of the report.

Catchwords:
EVIDENCE – opinion evidence – exceptions – expert opinion – admissibility of blood pattern analysis evidence – witness qualified in blood pattern analysis – Evidence Act 1995, s 79 – consideration of relevance and probative value of the evidence – where opinion evidence was of significant probative value and not outweighed by prejudicial effect – opinion evidence admitted
EVIDENCE – real evidence – demonstrations – visual appearance of blood quantities on horizontal surfaces – where demonstrations were not relevant due to absence of quantitative evidence tendered – demonstrations not admitted
Legislation Cited: Evidence Act 1995
Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.21) [2018] NSWSC 654
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

EX TEMPORE Judgment (T.1332)

Introduction

Application is made by the Crown to lead the evidence of Detective Sergeant Shawn Harkins set out in a 22-page statement signed on 17 January 2018. In addition to that 22-page statement, the Crown proposes to tender a significant number of photographs of two demonstrations undertaken by Detective Sergeant Harkins, which he describes in his statement.
Objection is taken by the Accused to the admission of the statement on a number of grounds.
First, it is submitted that the statement, and the contents of it, are irrelevant to any issue between the parties.
Secondly, it is submitted that, given that one part of the statement details demonstrations which are not an attempt to replicate any of the conditions at the Kingdom Hall on 14 July 1985, except for the size of the rooms and spaces, the danger of unfair prejudice to the Accused significantly outweighs the probative value of the demonstrations.
Finally, with respect to an opinion expressed by Detective Sergeant Harkins as to the observations of lay people, it is submitted that such opinion is not based upon his expertise or experience and is not a matter upon which he is qualified to give opinion evidence.

Background

The Accused was arraigned on 3 March 2017 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.34)

Details

AGLC: R v Warwick (No.34) [2018] NSWSC 1242
Case: [2018] NSWSC 1242
Decision Date: 08 August 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.34), the respondent, Warwick, was convicted of the murder of his wife. Warwick appealed his conviction, raising several issues, including the admissibility of blood pattern analysis evidence. The appeal centred on whether the trial judge had correctly admitted the opinion evidence of a blood pattern analyst and the accompanying demonstrations. The High Court of Australia was tasked with determining whether the opinion evidence and demonstrations were admissible under the Evidence Act 1995.

The court considered whether the opinion evidence provided by the blood pattern analyst was admissible under s 79 of the Evidence Act 1995. The court examined whether the opinion evidence was based on specialised knowledge and whether the analyst was qualified to provide such evidence. The court also assessed the relevance and probative value of the opinion evidence against any prejudicial effect. The court concluded that the opinion evidence was of significant probative value and not outweighed by any prejudicial effect. Consequently, the opinion evidence was admitted.

The court further considered the admissibility of the demonstrations used by the blood pattern analyst to illustrate the visual appearance of blood quantities on horizontal surfaces. The court found that the demonstrations were not relevant to the case because the analyst did not provide quantitative evidence of the blood quantities in the actual crime scene. The court held that the demonstrations did not meet the criteria for admissibility under the Evidence Act 1995. The court excluded the demonstrations from evidence.

The court upheld Warwick's conviction, finding that the admission of the blood pattern analyst's opinion evidence did not affect the safety of the conviction. The court did not find any error in the trial judge's admission of the opinion evidence and exclusion of the demonstrations. The appeal was dismissed.

Orders