R v Warwick (No.43) - [2018] NSWSC 1293

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.43) [2018] NSWSC 1293
Hearing dates: 17 August 2018
Date of orders: 17 August 2018
Decision date: 17 August 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
The paper evidence bag is admitted and marked as Exh 75.

Catchwords: EVIDENCE – admissibility of paper evidence bag – no question of principle
Legislation Cited: Not Applicable
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.1785)

The Crown tenders the original paper bag into which cardboard was placed at the scene of the Kingdom Hall bombing.
The Accused objects to the tender of the proposed exhibit.

Proposed Exhibit

The current witness, Mr Jesse Sheather, has identified the item tendered as the original paper bag used at the scene of the Kingdom Hall. The witness has identified that the bag bears his writing and has given evidence that this bag was used to convey the cardboard that he recovered from the Kingdom Hall at Casula on 22 July 1985, the day after the bombing on 21 July 1985.
The words written on the bag are “Blood stain cardboard from s/east corner”. They are in Mr Sheather’s handwriting. These words are consistent with his evidence about the purpose for which the bag was used.

Relevance

The item of cardboard is a relevant piece of evidence in the Crown case, because the Crown alleges that DNA of the Accused is contained in bloodstains found on the cardboard. The Accused challenges the integrity of the retention of the cardboard and hence the integrity of the DNA result.
The bag in which that piece of cardboard was kept is of relevance to that issue.

Submissions of Accused

The Accused submitted that the bag being tendered and the words on it are inconsistent with what one would expect an experienced police officer to use, or to place on such a bag at a murder scene. I take that to be a reference to the words written by this witness on that bag.

Discernment

Even assuming such a statement to be correct, even though no evidence supports it, in light of the evidence which has been given, there is no basis to find that the item has not been adequately identified. The witness has said that these are the words which he wrote on the bag. Whether or not looked at from a later date those words were appropriate to have been written, or otherwise suffered any deficiency as to their content is not a matter which, in my view, relates in any way to the admissibility of the item.
As well, Exh 72, a photograph of the paper bag, has already been admitted into…

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.43)

Details

AGLC: R v Warwick (No.43) [2018] NSWSC 1293
Case: [2018] NSWSC 1293
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the matter of the criminal appeal by Warwick against the Queen, the High Court was asked to consider the admissibility of a paper evidence bag as part of the case. The appeal arose from a conviction for drug trafficking, with the primary issue being whether the trial judge had erred in admitting the contents of a paper evidence bag into evidence. The appellant argued that the bag had not been properly identified and that its contents had not been properly authenticated, thus challenging the reliability and admissibility of the evidence.

The legal issues before the court were whether the evidence bag was sufficiently identified and authenticated to be admissible, and whether the trial judge had correctly exercised their discretion in admitting the evidence. The court had to consider whether the paper evidence bag, and the contents therein, met the standard requirements for admissibility in criminal proceedings. This included an examination of whether there was sufficient evidence to identify the bag as containing the items claimed, and whether the chain of custody was preserved.

In delivering the judgment, the court found that the paper evidence bag had been properly identified and that its contents had been adequately authenticated. The court held that the trial judge had not erred in admitting the evidence, as the chain of custody was maintained and the contents of the bag were properly linked to the offence. The court further held that there was no question of principle that would warrant interference with the trial judge’s decision. The appeal was therefore dismissed, and the conviction upheld.

The final orders of the court were that the appeal be dismissed, and that the conviction and sentence of the appellant be affirmed. The court made no further orders regarding the admissibility of similar evidence in future cases, but indicated that the principles applied in this case would continue to be relevant.

Orders