R v Warwick (No.48) - [2019] NSWSC 206

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.48) [2019] NSWSC 206
Hearing dates: 13 September 2018, 14 September 2018
Date of orders: 17 September 2018
Decision date: 06 March 2019
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
The document being a photocopy of the three pages of a notebook seized from the Accused’s house at Casula will be admitted as an exhibit and marked Exh 167

Catchwords: EVIDENCE – admissibility of a single photocopy document collating three notebook pages – whether the document is relevant to the proceedings - whether a single page photocopy document of three separate original documents is a copy document within the meaning of s 48 of the Evidence Act – whether the original document were seized lawfully – whether the provisions of s 138 of the Evidence Act permit the admission of the document because the desirability of admitting that evidence outweighs the undesirability of not admitting the evidence
Legislation Cited: Evidence Act 1995
Interpretation Act 1987
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

Judgment (T.2901)

On 13 and 14 September 2018, the Court took evidence on the voir dire from the former Detective Senior Constable Matthews about the seizing of three pages of a notebook upon which there was handwriting. It also heard submissions from the Crown and the Accused about the admissibility of a single page photocopy of the three original pages.
On Monday 17 September 2018, the Court having decided that the Crown had persuaded it that the document ought to be admitted, made an order to that effect. It indicated the principal conclusions which led to that result, and informed the parties that detailed reasons would be provided in due course.
These are those reasons.

Three Pages of a Notebook are Found and Seized

On 30 July 1985, the then Det. Matthews, together with other police, attended at the Accused’s home at 25 Tallowood Crescent, Casula (“the premises”). He initially waited outside the property until after members of the Australian Federal Police (“AFP”), accompanied by some officers of the NSW Police, entered the property in the execution of a Writ of Possession (“the Writ”) which had been issued by the Family Court of Australia on 25 July 1985. Those officers took possession of the premises.
The contents of that Writ which was addressed to all Officers of the AFP and the NSW Police Force included the following:

“YOU ARE HEREBY DIRECTED for the purpose of giving effect to the said order and with such assistance as you may require and if necessary by force to enter the land described, being the land contained in Certificate of Title Vol 12140, folio 43, and cause the wife, ANDREW MARGARET BLANCHARD…

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.48)

Details

AGLC: R v Warwick (No.48) [2019] NSWSC 206
Case: [2019] NSWSC 206
Decision Date: 06 March 2019

CaseChat Overview and Summary

The case of R v Warwick (No.48) involved a criminal trial where the admissibility of a single photocopy document, which compiled three separate notebook pages, was contested. The document was sought to be introduced as evidence in the proceedings, and the key issue was whether this document, being a photocopy of multiple originals, met the criteria for admissibility under the Evidence Act. Furthermore, the court needed to determine if the original documents were lawfully seized, and whether the provisions of section 138 of the Evidence Act could permit the admission of the document, given the balance between the desirability of admitting the evidence and the undesirability of not admitting it.

The court examined whether the photocopy constituted a 'copy document' within the meaning of section 48 of the Evidence Act. It was established that the original documents were seized lawfully, which was a prerequisite for their admissibility. The court then considered the discretionary power under section 138 of the Evidence Act, which allows for the admission of evidence despite not meeting strict statutory criteria if the court finds that the benefits of admitting the evidence outweigh the disadvantages of not doing so. In this instance, the court had to weigh the relevance and probative value of the document against the potential prejudice and complexity it might introduce into the proceedings.

Upon deliberation, the court ruled that the single photocopy, despite being a compilation of three separate notebook pages, could be considered a 'copy document' for the purposes of section 48. It further found that the desirability of admitting the evidence, due to its relevance and probative value, outweighed the undesirability of not admitting it, as there was no substantial prejudice to the defendant. Consequently, the court admitted the photocopy as evidence in the trial.

The final orders of the court allowed the single photocopy document to be admitted into evidence, subject to the conditions and considerations outlined in the ruling. This decision highlighted the application of the statutory provisions and the discretionary powers available to the court in balancing the admissibility of evidence in complex cases.

Orders