R v Warwick (No.57)
[2018] NSWSC 2018
•16 November 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.57) [2018] NSWSC 2018 Hearing dates: 16 November 2018 Date of orders: 16 November 2018 Decision date: 16 November 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) The document MFI OOOO is admitted and marked Exh 264.
(2) There will be no limitation on use pursuant to s 136 of the Evidence Act 1995.Catchwords: EVIDENCE – admissibility of police running sheet recording details of the seizure of evidence from accused’s home – relevant and admissible – no limitation on use to be imposed – no point of principle Legislation Cited: Evidence Act 1995 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.4925)
The Proposed Exhibit
-
The Crown tenders a running sheet dated 30 July 1985 of which the present witness, retired Detective Kevin Woods, is an author. It was previously marked MFI OOOO and as an exhibit on the voir dire as VD2.
-
The running sheet records, as a contemporaneous note, the discovery and seizure by the Police of three pages of handwritten notes. Those notes were seized by the Police from the Accused's house at 25 Tallowood Ave, Casula on 30 July 1985.
-
The evidence with respect to the discovery and seizure of those notes was given by retired Detective Senior Constable Malcolm Matthews. At T.2835, Mr Matthews described finding them and the contents of them. He said he showed the notes to Mr Woods and then took them back to Liverpool Police Station where he gave them to Mr Woods.
-
Mr Matthews identified a single page photocopy of those three pages as being a copy of those pages that he had seized. That single page copy has been admitted as Exh 167.
Objections
-
Objection is taken to this running sheet being admitted because it is incomplete and there are no attachments with the proposed exhibit. According to the contents of the running sheet, the original notes were attached to it in an envelope, as were four photocopies of the notes. It is submitted that in the absence of those attachments, the document is incomplete and ought not be admitted.
-
The Accused further submits that, if admitted, it should be subject to a limitation on its use pursuant to s 136 of the Evidence Act 1995.
Discernment
-
In my view, the document is relevant and admissible. It was written by Mr Woods on 30 July 1985, and records the fact of what had occurred that day - namely that the documents were found, what the contents of the documents were, what happened to the documents, the reason they were seized and the nature of the further inquiries which were to be made.
-
In cross-examination Mr Woods was asked about the nature of the Police notes that would have been taken recording the events which occurred on that day at the house of the Accused. In particular, Mr Woods was asked whether, if an officer found items of interest, there would be a record made as to the time and place where the items of interest were found. Mr Woods said that he would expect that such a record would be made. This running sheet corroborates that statement and also corroborates the evidence Mr Woods gave about being shown the notes at the scene and what was done with them.
-
Mr Matthews gave evidence that the original notes were seized as exhibits and entered into an Exhibit Repository. This evidence suggests that although the notes may well have been attached to this document at the outset, thereafter they were removed from it and stored separately.
-
Mr Matthews also gave evidence that the details on the notes that were found are the same as those details recorded in the running sheet.
-
In my opinion, it would be wrong to conclude that the running sheet is incomplete. It is not. The running sheet contains what it there set out to record. It is complete on its face and the fact that the original notes were at one time attached and later were not attached but stored in an Exhibit Repository, does not mean that this running sheet is incomplete. The contents of it are clearly relevant. They are replicated in Exh 167 which has been admitted and, in my view, the document is relevant and admissible.
Limitation on Use
-
It is submitted that a limitation on use under s 136 of the Evidence Act should be imposed. Section 136 provides:
“136 General discretion to limit use of evidence
A court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) unfairly prejudicial to a party or,
(b) be misleading or confusing.”
-
The contents of the running sheet are identified in the evidence as being an accurate record of the contents of original handwritten notes, of what was done with those notes and the relevance of them.
-
No use of those contents has been identified to me in the course of submissions of any kind which would suggest that the use of this document, or the contents of it, would be unfairly prejudicial to the Accused, or that it would be misleading or confusing. On the contrary, it seems to me, having regard to the evidence that has been admitted, that this running sheet is a contemporaneous document which supports that evidence. There does not seem to me to be any basis to conclude that there exists any unfair prejudice to the Accused by the admission of it.
-
The document formerly MFI OOOO will be admitted as Exh 264. There will be no limitation on use imposed pursuant to s 136 of the Evidence Act.
Orders
-
I make the following orders:
The document MFI OOOO is admitted and marked Exh 264.
There will be no limitation on use pursuant to s 136 of the Evidence Act.
**********
Decision last updated: 06 February 2019
0
1