R v Warwick (No.52)

[2018] NSWSC 2034

Supreme Court

New South Wales

Case Name:	R v Warwick (No.52)
Medium Neutral Citation:	[2018] NSWSC 2034
Hearing Date(s):	04 October 2018
Date of Orders:	04 October 2018
Decision Date:	4 October 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1)   Documents are relevant and admissible. They will be marked Exh 205.
Catchwords:	EVIDENCE – admissibility of expert evidence relating to handwriting – where the expert has not identified all the documents relied upon – where the expert has expressed his opinion based on examination of photocopies of original documents - the evidence is relevant and admissible
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: 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.3579)

1. The Court is hearing evidence from Sergeant Dean Swift, an expert forensic document examiner currently attached to the Forensic Evidence and Technical Services Group of the NSW Police.

2. The Crown proposes to adduce expert evidence from Sgt Swift about the identity of the author of the handwriting on a single page photocopy of three pages of a notebook seized by NSW Police from the home of the Accused at Casula.

The Proposed Exhibits

1. The Crown tenders MFI A-C and also a bundle of documents comprising an 18-page personnel file for the Accused created by NSW Fire and Rescue. The documents in the bundle MFI A‑C are those referred to as Specimen Items S1 to S8 (except S7 which is the 18-page personnel file) in the expert report of Sgt Swift dated 23 August 2016, which is MFI A-D.

2. According to his report, in undertaking his exercise of comparison of the questioned items of handwriting with known handwriting of the Accused, Sgt Swift relied upon and took into account the Specimen Items contained in MFI A-C.

3. In respect of the 18-page personnel file, item S7, the evidence of Sgt Swift is that whilst he took the whole of the file into account, he only extracted material for his comparison chart in MFI A-D from one page, being a page entitled "Subject Change of Address". That page is included in the bundle marked MFI A-C.

4. The balance of the personnel file includes a variety of documents which, upon looking at them and having regard to the nature of the documents and their handwritten contents, contain a number of examples of handwriting of the Accused, including his signature. There is handwriting of other people, but only to a minor extent, on those items.

Relevance

1. The Crown tenders the material as being relevant because it is the basis for the expert opinion expressed by this witness with respect to the identification of the handwriting of the questioned items, as being that of the Accused.

Accused’s Submissions

1. The Accused opposes the admission of these documents, submitting, first, that they were not all of the documents given to Sgt Swift and that there were others given to him, which it appears he did not take into account or rely upon. Secondly, the Accused submitted that the contents of the 18-page personnel file includes writing other than that said to be of the Accused. Thirdly, he submitted that the nature of the evidence, already given by Sgt Swift, indicates that the documents in MFI A-C and the personnel file are not originals but are copies of original documents. Fourthly, the Accused submitted that the documents (or at least some of them) did not reflect the factual assumption which Sgt Swift was asked to make.

Discernment

1. In my view, the submissions of the Accused opposing the admission of these documents are without merit.

2. First, the fact that some handwriting may not have been extracted from the personnel file in S7 and may not be that of the Accused, does not make those documents inadmissible. It may be a question on which Sgt Swift is to be examined as to whether there is handwriting relied upon by this witness which is not that of the Accused. That is not a matter relevant to admissibility of the proposed exhibit.

3. Secondly, there is no basis in the evidence to date to suggest that if other documents were provided to the witness in forming his opinion, he took them into account. The Accused was not able to identify what those documents might be. The Accused accepted in submissions that Sgt Swift did not identify any other documents. The Accused relied upon the Expert Code of Conduct. In my view, the Expert Code of Conduct does not require an expert, in their report, to reveal, by list or by other identification, all of the documents with which the expert was provided and upon which no reliance was placed. It may be that the Accused wishes ultimately to submit that the expert opinion is to be given little weight because the documents that the expert did not take into account demonstrate that his opinion is unsoundly based. That is not a reason to conclude that these documents are inadmissible, but is a matter upon which an accused may wish to ask questions in cross-examination.

4. Insofar as Sgt Swift has expressed his opinion based on an examination of photocopies of the original documents, that is not a matter which affects admissibility of the underlying documents. It may be an available matter for cross-examination, but there is nothing to suggest that this would make these documents admissible as the source documents for his expert opinion.

5. Whether or not the documents reflect the factual assumptions, again, is not a matter which goes to the issue of admissibility – it is a matter which the Accused may wish to explore in cross-examination.

6. In my view, the documents are relevant and admissible and should be admitted. They will be marked Exhibit 205.

Orders

1. I make the following orders:

   (1)Documents are relevant and admissible. They will be marked Exhibit 205.

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