R v Warwick (No.50)
[2018] NSWSC 1554
•26 September 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.50) [2018] NSWSC 1554 Hearing dates: 26 September 2018 Date of orders: 26 September 2018 Decision date: 26 September 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Newspaper article tendered by the Crown is admitted and marked Exh 183.
(2) Six enlarged photographs tendered by the Crown are admitted and marked Exh 184.Catchwords: EVIDENCE — admissibility of two items tendered by the Crown — items related to lawful search of accused’s residence pursuant to a search warrant — both items relevant — both admitted as exhibits 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:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
File Number(s): 2015/222068 Publication restriction: Not Applicable
ex tempore Judgment (T.3277; T.3282)
Items Tendered
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The Crown tenders two items. The first is a reproduction of an article which the present witness, retired Detective Mark Nicholls, has identified as being the article contained in a piece of torn newspaper found at the Accused’s house at 25 Tallowood Ave, Casula on 31 July 1984 during the execution of a search warrant.
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The second item tendered by the Crown comprises six photos which have been identified by Mr Nicholls as enlarged versions of photos taken by another Police officer in the garage of the Accused’s residence during the execution of that same search warrant on 31 July 1984.
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Each item will be considered in turn.
Newspaper Article
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During the course of the evidence of Mr Nicholls, he said that he had attended, and participated in, the execution of a search warrant at the house of the Accused at 25 Tallowood Ave, Casula on 31 July 1984. In the course of that search, Detective Delaforce, who is now deceased, took a series of photographs which have been admitted as Exh 181. The photograph on page 13 of the folder of those photographs was of a print of a page in a newspaper, which contained the whole of an article. That part of the page of the newspaper was found in the lounge room of the Accused’s house.
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Mr Nicholls has given evidence that he recalls visually scanning that newspaper article and noted that it referred to ICI (a chemical company) and agricultural explosives (amongst other things). The part of the newspaper page which had been torn out of the newspaper was seized and removed from the Accused’s home into the custody of the Police.
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The unchallenged evidence before the Court from Mr Nicholls is that the document tendered is a reproduction of the newspaper article found in the Accused’s lounge room. That evidence is consistent with the appearance of the document and the words which are legible. On the basis of a photograph of the newspaper article, which is on page 13 of the folder which is Exh 181, I am satisfied that the article which is now being tendered, although a reproduction is, in substance, the same article as that depicted in the photograph of the torn out newspaper page.
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The fact that there is no date on the article, nor any publisher on the article, nor that the whole page has not be reproduced, each of which were submissions raised by the Accused when opposing the admission into evidence of this document, seem to me to be entirely irrelevant to the question of whether this reproduction of a newspaper article is admissible.
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It is a relevant fact in the proceedings that the contents of this article were found at the Accused’s house and in the Accused’s possession on 31 July 1984, a date which falls within the relevant time period of the alleged offences. At the least, I am satisfied that it is capable of disclosing an interest by the Accused in the article because it has been torn from a newspaper and it does not appear in the photographs that the article was kept with the balance of other newspapers that were in the house. I am satisfied that the fact of the Accused’s apparent interest in the subject matter of the article, which led him to tear the article from the newspaper and retain it, is sufficient to demonstrate the relevance of the document.
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As to the other objections, they are without substance. The document is therefore admissible, and will be admitted and marked Exh 183.
Photographs
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The six photographs tendered by the Crown will now be considered.
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Objection is taken to the admission of the photographs which have been identified by Mr Nicholls as enlarged, or magnified, versions of the photographs contained in Exh 181.
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In putting his objections, the solicitor for the Accused has admitted that he was not able to understand the photographs that were tendered, the order in which they were taken and why certain objects in the photo were present and then not present. That was a reference to an earlier submission.
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The defence submitted that it was unfair to the Accused to be presented with enlarged photographs based on the evidence of the witness where items in the photograph had been moved around, and in circumstances where the Accused did not know what has been done or who had done it.
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Smaller versions of the underlying photographs have been admitted as Exh 181. At the time of the admission of those photographs, I reserved to the Accused the right, once specific instructions were obtained, to apply to the Court to have the witness recalled if his evidence had been concluded by that time.
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The photographs which are presented, I am satisfied, are simply magnifications or “enlargements” of existing photographs with, in some cases, arrows placed artificially on the photographs to draw attention to particular items.
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Photograph 1 of the bundle tendered is an enlargement demonstrably of the photographs in the bottom right-hand corner of page 9 of Exh 181; photograph 2 is demonstrably an enlargement of the photograph in the top left-hand corner of the same page; photograph 3 is an enlargement of the photograph in the bottom right-hand corner of page 8 of Exh 181; photograph 4 is an enlargement of part of that same photograph; photograph 5 is an enlargement of the photograph on page 10 of Exh 181 at the bottom left-hand corner; and photograph 6 is a further magnification of that same photograph.
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In my view, and on the same basis as Exh 181, these enlarged photos are admissible. They will accordingly be admitted and marked Exh 184.
Orders
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I make the following orders:
Newspaper article tendered by the Crown is admitted and marked Exh 183.
Six enlarged photographs tendered by the Crown are admitted and marked Exh 184.
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Decision last updated: 16 October 2018
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