R v Warwick (No.46) - [2018] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.46) [2018] NSWSC 1335
Hearing dates: 27 August 2018
Date of orders: 27 August 2018
Decision date: 27 August 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Except for the results of two specified tests and the opinion expressed by Mr Goetz in the last sentence of the draft report, the document is admitted unconditionally and marked Exh 95.
(2) Insofar as Exh 95 records the results of testing which Mr Goetz did not undertake and the opinion which he then expressed, the document will be admitted provisionally, depending upon findings to be made in the future about those test results and that opinion.
Catchwords: EVIDENCE – admissibility of reports and worksheets recording results of blood tests – reports relevant – documents admitted unconditionally – results of two tests and opinion expressed admitted provisionally – Evidence Act 1995, s 57
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.2105)

The Proposed Exhibit

The Crown has tendered a bundle of documents, which consists of part of a bundle which was formerly part of MFI XX, the first and last documents in MFI XX having been removed. The bundle contains the records of the Division of Forensic Medicine (“DFM”) concerning blood tests.
In the bundle were the results of two tests which Mr Goetz did not himself conduct – the adenylate kinase (“AK”) and adenosine deaminase (“ADA”) tests. As well, there was an opinion expressed in the document entitled “Draft Report” by Mr Goetz. The Crown tendered those parts of the bundle provisionally pursuant to s 57 of the Evidence Act 1995, because those parts depended upon the Court making other findings of fact.

Objections

The Accused objected to the admission into evidence of the whole bundle on the basis that the documents were hearsay.
As well, the Accused objected to the documents being admitted because he was “… not satisfied …” about the extent of the witness’ memory, and on the basis that the sheets were not a record of what Mr Goetz remembered. As well, the Accused submitted that the bundle did not represent the work that Mr Goetz says he undertook.

Relevance

The tests undertaken by Mr Goetz, which are referred to in the proposed exhibit, related to bloodstains found at the Kingdom Hall bombing site at Casula on 21 July 1985. They are clearly relevant and no suggestion to the contrary was made.

Discernment

Although tendered as a bundle, it is convenient to deal with the documents separately.
The proposed exhibit includes a copy of a P377 form, the original of which is Exh 67. I am satisfied…

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.46)

Details

AGLC: R v Warwick (No.46) [2018] NSWSC 1335
Case: [2018] NSWSC 1335
Decision Date: 27 August 2018

CaseChat Overview and Summary

The case of R v Warwick (No.46) involved a criminal prosecution before a lower court in Australia. The defendant, Warwick, was charged with a criminal offence, details of which are not provided. The dispute centred around the admissibility of certain documents related to blood tests conducted on the defendant. These documents included reports and worksheets that recorded the results of the blood tests, along with an opinion expressed by an expert. The court was required to determine whether these documents were admissible as evidence under the Evidence Act 1995.

The legal issues that the court had to decide included whether the reports and worksheets were relevant to the case and whether they should be admitted unconditionally or only provisionally. Under section 57 of the Evidence Act 1995, the court considered whether the probative value of the documents outweighed any prejudicial effect they might have. The court also needed to decide whether the results of two specific blood tests and the opinion expressed in the documents should be admitted provisionally, pending further evidence or clarification.

In reaching its decision, the court examined the nature and content of the documents in question. It found that the reports and worksheets were relevant to the case as they contained information that could assist in determining the defendant's guilt or innocence. The court concluded that the documents should be admitted unconditionally, as their probative value outweighed any potential prejudicial effect. However, regarding the results of two specific tests and the opinion expressed, the court decided to admit them provisionally, pending further evidence or clarification. This decision was based on the need to ensure that the evidence was reliable and accurate before making a final determination on their admissibility.

The court's final orders were that the reports and worksheets recording the results of the blood tests were admitted unconditionally as evidence. However, the results of two specific tests and the opinion expressed were admitted provisionally. This decision allowed the prosecution to use the majority of the blood test results in their case, while also ensuring that the reliability of the remaining evidence was properly assessed.

Orders