R v Warwick (No.38)
[2018] NSWSC 1285
•15 August 2018
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Warwick (No.38) [2018] NSWSC 1285 Hearing dates: 15 August 2018 Date of orders: 15 August 2018 Decision date: 15 August 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Pursuant to s 66 of the Evidence Act 1995, the document is admitted and marked as Exhibit 66.
Catchwords: EVIDENCE – hearsay – criminal proceedings – exceptions – maker available – evidence fresh in witness’ memory Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
File Number(s): 2015/222068 Publication restriction: Not Applicable
EX TEMPORE Judgment (T.1705)
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The Crown has tendered a document which consists of a running sheet dated in August 1985, which the present witness, former Detective Sergeant Sheather, gave evidence that he wrote. Objection is taken by the Accused to its admission into evidence.
The Proposed Exhibit
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The running sheet records three events: the first is that the detonator found in the vehicle concerned with Event 6 on 10 February 1985 had been "functioned". I understand this to be equivalent to “exploded”. The second fact which is recorded is that on 12 August 1985, the detonator and its remains were conveyed to the Material Research Laboratories in Melbourne (“the MRL”). The third fact which is recorded is that on 13 August 1985, advice was received by Mr Sheather from Mr Robert Barnes from the MRL describing the detonator, its type and its relationship to the detonator used in Event 7, namely the Kingdom Hall bombing on 21 July 1985.
Relevance
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In my view, the contents of that document provides evidence which is relevant to the counts involving at least Events 6 and 7 and may, in due course, be relevant to other counts depending on the course of the evidence. As well, it is relevant to rebut the attack being mounted by the Accused to the effect that the investigation of Event 7 was conducted incompetently.
Submissions and Objection
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Objection is taken to the admission into evidence of the second paragraph of the running sheet on the basis that it contains a hearsay statement by way of a previous representation made by Mr Barnes from the MRL to Mr Sheather as to the results of the examination by him of the detonator and its remains. It is submitted that the evidence ought only to be given by Mr Barnes and that it was “unsatisfactory” for such evidence to be given in a hearsay form.
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The Crown submitted that as the evidence was relevant, it is entitled to tender the previous representation although it was hearsay, either because of s 66 of the Evidence Act 1995 or, alternatively, s 60 of that Act.
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Section 66 of the Evidence Act provides an exception to the hearsay rule where the maker of the representation is available to give evidence about the asserted fact. In the circumstances here, the maker of the previous representation is Mr Barnes. The Crown intends to call Mr Barnes as a witness in due course.
Discernment
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It is appropriate to first consider s 66 of the Evidence Act as a basis for the admission of the evidence.
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It is necessary under s 66 of the Evidence Act for the Court to be satisfied that when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. In my view, that is satisfied by reference to the particular dates disclosed in the document. The detonator and associated materials were received by Mr Barnes at the MRL and examined on 12 August 1985. The opinion contained in the representation (which is the asserted fact) was made the following day, on 13 August 1985, and contained observations made of that detonator and associated materials after receipt by Mr Barnes.
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The running sheet was completed shortly after that the representation was made. In my view, having regard to the nature of what occurred here, the context in which it occurred and the short period of time involved, I am satisfied that when the representation was made, the occurrence of the asserted facts, namely, the opinion formed by Mr Barnes, was fresh in Mr Sheather’s memory. Further, the representation was fresh in the memory of Mr Sheather when he completed the running sheet.
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There is no other reason advanced by the Accused as to why this document should not be admitted. In particular, no submission is advanced by reference to the provisions of s 135 and s 137 of the Evidence Act. No application was made under s 136 of the Evidence Act to limit the use of the document.
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Although a submission was made by the Accused that the evidence was more appropriate to be given by Mr Barnes, such a concept does not affect the admissibility of the previous representation contained within the tendered document. The Crown is entitled to adduce all evidence which may be admissible, and which is adjudged to be appropriate to lead. The fact that the evidence is hearsay and not the direct evidence of the opinion holder is a matter relevant to the weight of the evidence.
Conclusion
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In my view, because it is admissible under s 66 of the Evidence Act, there is no need for me to consider the admissibility of it under s 60 of the Evidence Act at this stage.
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The document will be admitted and marked Exhibit 66.
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Amendments
20 August 2018 - Typographical correction on coversheet
31 August 2018 - Addition of transcript reference
Decision last updated: 31 August 2018
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