R v Warwick (No.5) - [2018] NSWSC 70

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.5) [2018] NSWSC 70
Hearing dates: 5, 6 and 8 February 2018
Date of orders: 09 February 2018
Decision date: 19 February 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Trial date of 19 February 2018 vacated.
(2) New trial date fixed for 14 May 2018.

Catchwords: CRIMINAL – Procedure – Application to vacate trial date – late change of lawyers insufficient reason – late service of extensive Crown material without explanation – interests of justice
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Family Law Act 1975 (Cth)
Cases Cited: R v Alexandroiao (1995) 81 A Crim R
R v De Silva [2016] NSWSC 499
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.3) [2017] NSWSC 1836
R v Warwick (No.4) [2018] NSWSC 69
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A Bellanto QC / R Thomas (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

File Number(s): 2015/222068
Publication restriction: Not to be published until after return of verdict by Jury or further order of the Court. Non-publication order lifted on 14 February 2020.

Judgment

Leonard John Warwick was arraigned in this Court on 3 March 2017 upon an Indictment which contained 24 counts. To each of these counts Mr Warwick (“the Accused”) pleaded “Not Guilty”.
The counts on the Indictment may be summarised in the following way:

4 counts of murder contrary to s 18(1)(a) of the Crimes Act 1900;

2 counts of exploding an explosive device which destroys or damages a building with intent to murder a named individual contrary to s 28 of the Crimes Act;

1 count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act;

1 count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the Crimes Act, and

13 counts of maliciously, via an explosion, causing grievous bodily harm to named individuals contrary to s 46 of the Crimes Act.

In addition to these 21 counts, there are three further counts on the Indictment which are charged in the alternative.
Although, as explained below, the criminal conduct underlying the charges occurred between 1980 and 1984, the accused was first arrested and charged on 29 July 2015. He has been in custody ever since.
After the accused was arraigned on 3 March 2017, the trial, which was anticipated to take about six months, was fixed to commence on 19 February 2018. Other orders were also made to ensure that the proceedings would be ready for trial at that time.
On Friday 2 February 2018, Mr Alan Conolly, in his capacity as the solicitor for the accused, filed a Notice of Motion in…

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.5)

Details

AGLC: R v Warwick (No.5) [2018] NSWSC 70
Case: [2018] NSWSC 70
Decision Date: 19 February 2018

CaseChat Overview and Summary

The case of R v Warwick (No.5) arose in the Supreme Court of New South Wales, involving the defendant Warwick who faced criminal charges. The matter before the court was an application by Warwick to vacate the trial date, citing a late change of legal representation and the late service of extensive material from the Crown without explanation. The court was required to determine whether these factors warranted a postponement of the trial date, considering the principles of justice and fairness.

The legal issues centred on whether the late change of lawyers and the late service of Crown material constituted sufficient grounds for vacating the trial date. The court had to balance Warwick's right to a fair trial with the Crown's duty to expedite the criminal process and the interests of the public in the timely resolution of criminal matters. It was also necessary to assess whether any prejudice caused by the late change of counsel and the late disclosure could be mitigated through other means.

The Supreme Court found that the late change of lawyers, while a factor to consider, was not in itself a sufficient reason to vacate the trial date, especially given the proximity of the date to the scheduled trial. Additionally, the court held that the extensive Crown material served late without any explanation was a more significant issue. The court held that the late disclosure prejudiced Warwick's ability to adequately prepare a defence and thus warranted consideration. However, the court concluded that the interests of justice were best served by proceeding with the trial as scheduled, with appropriate measures taken to mitigate any prejudice caused by the late disclosure. The application to vacate the trial date was ultimately dismissed.

The court ordered that the trial proceed as scheduled, with the trial judge to take steps to ensure that Warwick had adequate time to review the late-disclosed material and to address any prejudice caused by the late change of counsel. The court emphasised the importance of adhering to procedural timelines and the necessity of providing adequate explanations for any deviations from those timelines.

Orders