R v Warwick (No.53) - [2018] NSWSC 1714

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.53) [2018] NSWSC 1714
Hearing dates: 15 October 2018
Date of orders: 15 October 2018
Decision date: 15 October 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Notice of Motion of the Accused of 15 October 2018 dismissed.

Catchwords: CRIMINAL PROCEDURE – application by Accused seeking an order that Crown be prohibited from calling a witness – witness alleged to have been discredited by findings of an inquiry unrelated to the present case – consideration of prosecution duty concerning the calling of witnesses – trial judge lacks power to intervene in Crown case in manner sought – application refused
Legislation Cited: Evidence Act 1995
Cases Cited: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
The Queen v Apostolides [1984] HCA 38; (1984) 154 CLR 563
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
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: Publication restriction lifted on 11 December 2018

EX TEMPORE Judgment (T.3636)

On 4 October 2018, it was agreed between the lawyers for the Accused and the Crown that the evidence of Mr Robert Collins Barnes, a Crown witness, would be taken on a voir dire, to enable the expertise of the witness to be subject to challenge by the Accused as to its admissibility, after hearing all of the expert’s opinion evidence.
By Notice of Motion filed this morning immediately prior to Mr Barnes being called to give evidence, the Accused seeks an order to the following effect, namely,

“The Court not accept the evidence of Mr Robert Barnes as an expert”.

In the course of submissions, it was made plain that what was intended to be achieved by such an order was that the Crown not be permitted to call Mr Barnes to give any evidence at all. Such an order which was sought was not grounded in any specific statutory provision but rather was said to fall within the general jurisdiction of the Court to ensure that there should be a fair trial.
In support of the Motion, the Accused relied upon an affidavit of Elizabeth Ramsay sworn 15 October 2018, as well as upon the contents or part of the contents of the report of the Board of Inquiry in the Australian Capital Territory (“the Inquiry”) into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester (“the Report”), which was published on 29 May 2014. The Report was tendered by the Accused, admitted as an exhibit in the trial without objection and marked Exh 206.

The Report of the Inquiry

The Accused drew attention to a significant part of that Report in which the evidence given by Mr…

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.53)

Details

AGLC: R v Warwick (No.53) [2018] NSWSC 1714
Case: [2018] NSWSC 1714
Decision Date: 15 October 2018

CaseChat Overview and Summary

In the matter of R v Warwick (No. 53), the case before the court involved an application by the accused to prevent the Crown from calling a particular witness during the trial. The accused argued that the witness had been discredited by findings from an unrelated inquiry, and thus should not be allowed to testify. The application was heard in a court that had jurisdiction to make such a ruling.

The primary legal issue before the court was whether the trial judge had the authority to prohibit the Crown from calling a witness based on findings from an unrelated inquiry. The court needed to determine whether the prosecution had a duty to avoid calling witnesses who had been discredited, and if the trial judge had the power to intervene in the Crown's case in the manner sought by the accused.

The court held that the prosecution did not have an obligation to avoid calling witnesses who had been discredited in unrelated proceedings. It was emphasised that the trial judge's role was not to interfere with the Crown's case by barring witnesses. The court found that the trial judge lacked the power to intervene in the manner requested by the accused. Consequently, the application to prevent the Crown from calling the witness was refused.

Orders