R v Warwick (No.45)
[2018] NSWSC 1352
•23 August 2018
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New South Wales |
Case Name: | R v Warwick (No.45) |
Medium Neutral Citation: | [2018] NSWSC 1352 |
Hearing Date(s): | 23 August 2018 |
Date of Orders: | 23 August 2018 |
Decision Date: | 23 August 2018 |
Jurisdiction: | Common Law - Criminal |
Before: | Garling J |
Decision: | Order that the evidence of Mr Sheather between pages 1607.6 and 1625.22 which was taken on the voir dire be admitted as evidence in the trial |
Catchwords: | EVIDENCE – voir dire – evidence taken on voir dire to be admitted as evidence in the trial – judge alone trial – no point of principle |
Legislation Cited: | Evidence Act 1995 |
Cases Cited: | R v Warwick (No.37) [2019] NSWSC 196 |
Texts Cited: | Not Applicable |
Category: | Procedural and other rulings |
Parties: | The Crown |
Representation: | Counsel: |
File Number(s): | 2015/222068 |
Publication Restriction: | Not Applicable |
EX TEMPORE Judgment (T.2007)
Application is made by the Crown to tender in the trial the oral evidence of Mr Sheather, from transcript page 1607.6 to transcript page 1625.22. This evidence was originally taken on a voir dire and not as part of the evidence in the trial.
The subject matter of the oral evidence on the voir dire was the expertise of Mr Sheather to express opinions with respect to the crime scenes at which he attended relating to some, but not all, of the Events the subject of the Indictment. As well, his opinions addressed the nature of the explosive devices which had been activated at those scenes or, in the case of Event 6, had been discovered before it was activated.
At the conclusion of the voir dire, the Accused challenged the expertise of Mr Sheather in respect of giving opinion evidence about those matters.
On 14 August 2018, I ruled that Mr Sheather was qualified to give opinion evidence of the kind which the Crown intended to lead. The reason for that ruling are to be found in R v Warwick (No.37) [2019] NSWSC 196
Relevant
The fact that Mr Sheather’s opinion evidence has been ruled admissible does not mean that the extent of his expertise is irrelevant. On the contrary, a fact-finding tribunal is obliged to assess the weight to be accorded to the evidence. The extent of a witness’s experience will affect the weight to be accorded to the evidence. Accordingly, the content of the evidence is relevant.
Discernment
Application was made by the Crown at the conclusion of the voir dire and the Court’s ruling on expertise to tender the voir dire evidence as evidence in the trial. This application was first made before the evidence-in-chief of Mr Sheather had concluded.
Argument was deferred at the request of the Accused. Ultimately, the Crown renewed its application, prior to the conclusion of the cross-examination of Mr Sheather.
The Accused opposed the admission of the evidence on the basis that:
“… it is not appropriate to have in evidence at the trial … the evidence taken where the issue of expertise was a preliminary decision …”.
Importantly, the Accused did not, by reference to any particular question and answer, make a submission that such question or answer should not be admitted because of form, or on any other basis. Nor did the Accused submit that any question which was asked by his lawyer on the voir dire would not have been asked if the Accused was on notice that the Crown would apply to have the voir dire evidence admitted in the trial.
This is a judge alone trial. Given that the evidence on the voir dire could be called as evidence in the trial, and that the evidence is relevant to the issues raised in the trial, it would be efficient to adduce the evidence by tendering it in the trial. That would avoid spending the time used on the voir dire to merely to repeat the evidence again. It would also avoid any adverse perception, or the possibility of adverse perception, that the voir dire evidence may have improperly influenced the fact-finding in the trial.
The objection raised by the Accused was in its terms somewhat elusive. It did not seem to rely upon any matter of substance. As well, it seemed to ignore part of the usual experience in criminal trials involving the tender of evidence taken on a voir dire as part of the trial evidence.
Further, no prejudice was identified to the Accused if the evidence was admitted. No reliance was placed by the Accused on any provision of the Evidence Act 1995 as a basis for the Court to reject the evidence.
As well, the solicitor for the Accused has the capacity to cross-examine Mr Sheather in the trial about this evidence on the voir dire should he choose to do so.
In all of the circumstances, I am unable to uphold the objection. It is appropriate to admit the evidence given on the voir dire in the trial.
Given that this is a judge alone trial and that the evidence has been taken on a voir dire, it seems appropriate that it be admitted as part of the trial itself. In so doing, the capacity of the solicitor for the Accused to cross-examine the witness both on the voir dire and in the trial is maintained and there will be no room for confusion as to the extent of the witness' evidence.
Orders
I make the following order:
(1)Order that the evidence of Mr Sheather between pages 1607.6 and 1625.22 which was taken on the voir dire be admitted as evidence in the trial.
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Amendments
05 March 2019 - Correct judgment published.