R v Warwick (No.54) - [2018] NSWSC 1716

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.54) [2018] NSWSC 1716
Hearing dates: 17 October 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Report of Mr Barnes of 23 November 1985 admitted and marked V.D.31

Catchwords: EVIDENCE – voir dire – report of Crown expert – diagram of search area after detonation of explosive device – estimations of size of explosive charge – results of laboratory examinations of device fragments – objection taken on basis of alleged non-compliance with Expert Witness Code of Conduct – report admitted on the voir dire
Legislation Cited: Evidence Act 1995
Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
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.3767)

The Crown tenders a report of the witness Mr Barnes, which he prepared on 23 November 1985 (“the Report”). The Report refers to the bombing of the Kingdom Hall at Casula, which occurred on 21 July 1985.

The Witness

Mr Barnes has given evidence that, in his capacity as a member of the Metallurgy Division of the Ammunition and Armour Metallurgy Group of the Materials Research Laboratory of the Department of Defence (“MRL”), he was asked to attend the scene of the Kingdom Hall bombing and assist with the investigations which were then being carried out.
Having regard to his qualifications and experience, his role, and the organisation of which he was a part, Mr Barnes' concern at the scene was to undertake examinations, and then later to examine and establish the nature and componentry of the bomb fragments which had been recovered from the explosion which occurred at the Kingdom Hall.

Objections by the Accused

Objection is taken to the Report upon the basis that it does not comply with the present requirements in the Expert Witness Code of Conduct with respect to what is disclosed in it and what statements ought to be made in it. As well, objection is taken on the basis that the assumptions were not properly established, the reasoning leading Mr Barnes to his conclusions was not demonstrated, and that the Crown has failed to produce all documents relevant to the Report.

Contents of the Report

The Report sets out the examinations which Mr Barnes undertook at the scene and records the results of his observations, and his expert opinion on various matters.

Discernment

By reference to a diagram (Figure 1) in the Report, Mr Barnes records the primary search area and the location, by reference to a grid, of the fragments subsequently identified by him in his further examinations as coming from the explosive device. The oral evidence that Mr Barnes…

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.54)

Details

AGLC: R v Warwick (No.54) [2018] NSWSC 1716
Case: [2018] NSWSC 1716
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.54), the defendant was charged with possessing and using an explosive device in a manner likely to cause danger to life and property. The dispute centred around the admissibility of expert evidence provided by the Crown's expert, which included a diagram of the search area after the detonation, estimations of the size of the explosive charge, and the results of laboratory examinations of device fragments. The trial judge conducted a voir dire to determine the admissibility of this evidence, which was objected to by the defendant on the basis of alleged non-compliance with the Expert Witness Code of Conduct.

The court was required to decide whether the expert's report complied with the requirements of the Expert Witness Code of Conduct, specifically whether the report contained all relevant material facts and whether it was free of bias or any other factor that might undermine its reliability. The defendant argued that the report was deficient in several respects, including the failure to include details about the methodology used to estimate the size of the explosive charge and the absence of information about the expert's qualifications and experience.

After considering the evidence and arguments presented, the court found that the expert's report was not in breach of the Expert Witness Code of Conduct. The court held that the report contained all relevant material facts and that there was no evidence of bias or any other factor that would undermine its reliability. The court also noted that the expert had provided a detailed explanation of the methodology used to estimate the size of the explosive charge and that his qualifications and experience were sufficient to establish his expertise in the field. As a result, the expert's report was admitted into evidence.

The court ordered that the expert's report be admitted as evidence in the trial and that the defendant's objection to its admissibility be overruled. The trial proceeded with the expert's evidence being presented to the jury, which ultimately found the defendant guilty as charged.

Orders