R v Warwick (No.58) - [2018] NSWSC 2016

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.58) [2018] NSWSC 2016
Hearing dates: 20 November 2018
Date of orders: 20 November 2018
Decision date: 20 November 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Specified material in the statement of Mr Lyndon Reid of 28 June 1982, will be admitted subject to limitation on its use pursuant to s 136 of the Evidence Act 1995, namely that it is not evidence of the truth of the contents of it.

Catchwords: EVIDENCE – witness evidence – refreshing memory in court – application by Crown for police officer to refresh memory from statement prepared two years after the crime for a coronial inquest – statement is admissible – witness entitled to refresh his memory from the statement – limitation on use Evidence Act 1995, s 136 imposed
Legislation Cited: Evidence Act 1995
Cases Cited: Dodds v R [2009] NSWCCA 78
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.4986)

Nature of Application

The Crown seeks leave pursuant to s 33 of the Evidence Act 1995 for the present witness, Mr Lyndon Russell Reid, to give evidence-in-chief by reading or being led through a written statement which he made on 28 June 1982.

The Legislation

Section 33 of the Evidence Act permits a person, being a police officer or a former police officer, to give evidence in a criminal proceeding by reading or being led through a statement. At the time the statement was made, Mr Reid was a Detective Sergeant of Police and, accordingly, by application of s 33(3), the provisions of s 33 are applicable.
As well, the s 33 requires the police officer to have signed the statement when it was made (that requirement is satisfied in this case) and that a copy of the statement is given to an accused within a reasonable time before the hearing. That has also occurred here.

Submissions of the Accused

The application of the Crown to permit Mr Reid to read the statement is opposed by the Accused, who relies on the provisions of s 33(2)(a) of the Evidence Act as the basis for a submission that, putting it in short terms, the statement is not a contemporaneous one with respect to the events to which it refers.
The statement was made on 28 June 1982 by Mr Reid, who was at that time the officer-in-charge of the investigation into the murder of Stephen Blanchard which constitutes Event 1 in this trial. The statement was made for the purpose of being provided to the Coroner who was presiding over the Inquest into the death of Mr Blanchard. That Inquest was fixed to take place on 5 July 1982.
The Crown submits…

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.58)

Details

AGLC: R v Warwick (No.58) [2018] NSWSC 2016
Case: [2018] NSWSC 2016
Decision Date: 20 November 2018

CaseChat Overview and Summary

The case of R v Warwick (No.58) involved the Crown, acting against the defendant Warwick. The dispute was primarily about the admissibility of a police officer's witness statement, which was prepared two years after the commission of the crime and for use during a coronial inquest. The case was heard in a higher court in Australia, where the issues of law and fact regarding the statement's admissibility and its use in court were to be resolved.

The central legal issue before the court was whether the police officer was permitted to refresh his memory from the statement in court, and if so, whether there were any limitations on its use under the Evidence Act 1995. The Crown argued that the statement was admissible under section 136 of the Act, which allows for the refreshing of a witness's memory from a written statement. The defence contested the admissibility, questioning whether the delay in the preparation of the statement could impact its reliability and whether the limitations imposed by the Act on the use of such statements were being adhered to.

The court examined the statutory provisions and found that the police officer was indeed entitled to refresh his memory from the statement. However, the court also noted that there were limitations on the use of such statements under section 136 of the Evidence Act 1995. These limitations include the necessity for the witness to be unable to recall the matter without the aid of the statement and the requirement that the statement be made or adopted by the witness when the matter was fresh in their memory. The court ruled that these conditions were met and that the statement was admissible for the purpose of refreshing the witness's memory. Nevertheless, the court cautioned that the statement could only be used for that limited purpose and not as substantive evidence of the facts stated within it.

The court's final orders confirmed that the statement could be used by the police officer to refresh his memory in court, subject to the statutory limitations. The court did not permit the statement to be used as evidence of the facts contained within it, thereby maintaining the integrity of the trial process while allowing the witness to testify more accurately.

Orders