R v Warwick (No.55) - [2018] NSWSC 2011

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.55) [2018] NSWSC 2011
Hearing dates: 2 November 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Accede to the application of Crown that the limitation imposed on the use of Exh 171 and Exh 172 pursuant to s 136 of the Evidence Act 1995 be removed.
(2) Exh 171 and Exh 172 are now admitted unconditionally.
Catchwords: EVIDENCE – discretions – application to remove limit on use of evidence previously imposed pursuant to Evidence Act 1995, s 136 – evidence in two exhibits relating to DNA laboratory processes and results – where evidence of various scientists established that the necessary scientific processes recorded in the exhibits had been followed – where court was not satisfied that there was any unfair prejudice to the Accused – where evidence was of high probative value – limit on use removed – evidence not excluded pursuant to Evidence Act, s 137
Legislation Cited: Evidence Act 1995
Cases Cited: R v Warwick (No.49) [2018] NSWSC 1557
Texts Cited: Expert Witness Code of Conduct
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.4445)

This is an application by the Crown for the removal of a limitation on use with respect to Exh 171 and Exh 172.
On 19 September 2018, for the reasons contained in R v Warwick (No.49) [2018] NSWSC 1557, an extract of a folder of documents which had been marked "MFI SSSS" was tendered and admitted as Exh 171. At the time the documents comprised in that exhibit were admitted, I ordered that pursuant to s 136 of the Evidence Act 1995, the document entitled "DNA Submission Sheet", which formed the front page of each section comprised in Exh 171, be subject to a limitation on use, namely that the contents of the document were not admitted as being true.

Factual Background

Some background is necessary. In 2013, the Police submitted two items to the New South Wales Forensic and Analytical Science Services (“FASS”), a part of the New South Wales Health Pathology: a piece of cardboard and a piece of carpet. This was for the purpose of identifying whether a DNA profile could be extracted from the items.
After the items were received by FASS, a forensic biologist has given evidence that she examined those items and obtained by swabbing, a number of samples suitable for submission to DNA testing. Ms Nicole Campbell, the biologist, made notes at the time of her work. Those contemporaneous notes have been admitted as Exh 173.
I am satisfied that Ms Campbell, in 2013, produced six samples which have been identified by her as items 6i, 6ii, 7i, 7ai,…

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.55)

Details

AGLC: R v Warwick (No.55) [2018] NSWSC 2011
Case: [2018] NSWSC 2011
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of R v Warwick (No.55) involved the defendant facing charges that necessitated the admissibility of certain scientific evidence. The dispute centred on the interpretation and application of the Evidence Act 1995, particularly in relation to sections 136 and 137. The matter was heard and determined in a court of law in Australia. The central issue before the court was whether the evidence from two exhibits concerning DNA laboratory processes and results should be admitted, given the limitations previously imposed under section 136 of the Evidence Act. The defendant argued that the evidence should be excluded due to potential prejudice, while the prosecution sought to have the limitations removed to allow the use of the evidence.

The court was required to consider the scientific validity and probative value of the evidence, as well as whether there was any unfair prejudice to the defendant that would warrant exclusion under section 137 of the Evidence Act. Expert testimonies were presented to establish the reliability and accuracy of the scientific processes detailed in the exhibits. The court found that the evidence provided was of high probative value and that the necessary scientific procedures had been meticulously followed. Furthermore, the court was not persuaded that any unfair prejudice would result from the admission of the evidence. Therefore, the court exercised its discretion under section 136 to remove the previously imposed limitations on the use of the evidence, allowing it to be considered in the proceedings.

In summary, the court ruled that the evidence in question should not be excluded, and the limitations previously imposed on its use were removed. The high probative value of the evidence and the absence of unfair prejudice to the defendant were pivotal factors in the court's decision. This ruling allowed the prosecution to present the DNA evidence in the case, contributing to the overall determination of the defendant's guilt or innocence.

Orders