R v Warwick (No.39) - [2018] NSWSC 1286

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.39) [2018] NSWSC 1286
Hearing dates: 16 August 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Dismiss the Notice of Motion filed in court on 16 August 2018 to strike out the evidence-in-chief of Mr Jesse Sheather.

Catchwords: EVIDENCE – application by accused to strike out evidence-in-chief of a former police officer – Evidence Act 1995, s 33 not applicable – where it was asserted that witness refreshed his memory from documents without leave – Evidence Act 1995, s 32 not applicable – notice of motion dismissed
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:
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.1731)

Application is made by Notice of Motion filed in Court this morning for an order that the entirety of the evidence-in-chief of Mr Jesse Sheather, a retired Detective Sergeant of the NSW Police, be struck out. In support of that Notice of Motion the Accused relies upon the affidavit of Ms Elizabeth Ramsay of 16 August 2018, to which was attached a statement of Mr Sheather dated 15 December 2015.

Submissions

The submissions by the Accused in support of the Notice of Motion seem to rely upon the contention that Mr Sheather, in giving evidence of what he recalls seeing or doing on particular occasions, is only doing so as a consequence of having refreshed his recollection from documents which are, or else contain, previous representations which amount to hearsay evidence. As a result, it is submitted the evidence given by Mr Sheather is itself hearsay and thereby inadmissible.
The Accused also submitted that the Crown was obliged first to identify and lead evidence from Mr Sheather of what the state of his actual recollection was, whether he has previously had any defect of recollection which may have been refreshed and, if so, from what material, or else how, that recollection has been refreshed. It was further submitted that the Crown should lead evidence from Mr Sheather to clarify whether the content of his evidence is in truth a primary recollection, a refreshed recollection or evidence which has been reconstructed by him in some way.
As well as these oral submissions, the Accused has also put written submissions before the Court that the provisions of s 32 of the Evidence Act 1995, which address the refreshing of memory in Court, apply with the consequence that the Crown was obliged to obtain leave from the Court before adducing the evidence of Mr Sheather because he had refreshed his recollection. It is submitted that the evidence ought be struck out as leave was not applied for…

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.

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Details

Case: [2018] NSWSC 1286
Decision Date: 16 August 2018

CaseChat Overview and Summary

The case of R v Warwick (No.39) involved the accused, Warwick, who applied to strike out the evidence-in-chief of a former police officer. The dispute centred on whether the police officer had refreshed his memory from documents without obtaining leave from the court, as required by section 32 of the Evidence Act 1995. Additionally, the application questioned whether section 33 of the Evidence Act 1995, which relates to evidence that is not admissible, was applicable in this case. The matter was heard in the relevant Australian court.

The primary legal issues the court needed to determine were whether the police officer had indeed refreshed his memory from documents without the court's leave, and if so, whether this rendered the evidence inadmissible under section 32 of the Evidence Act 1995. Furthermore, the court had to consider whether section 33 of the Act was applicable in striking out the evidence. These questions required careful analysis of the provisions of the Evidence Act 1995 and the circumstances surrounding the police officer's evidence.

In examining the application, the court found that the police officer had not refreshed his memory from documents without leave, thus section 32 was not applicable. The court also concluded that section 33 of the Evidence Act 1995 did not provide a basis for striking out the evidence. Consequently, the application by Warwick to strike out the evidence was dismissed. The reasoning was based on the court's interpretation of the statutory provisions and the factual circumstances presented.

The final orders of the court were that Warwick's application to strike out the evidence-in-chief of the former police officer was dismissed. The court found that the evidence was admissible and did not fall under the provisions of sections 32 or 33 of the Evidence Act 1995.

Orders