R v Warwick (No.58)
[2018] NSWSC 2016
•20 November 2018
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:
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.4986)
Nature of Application
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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
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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.
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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
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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.
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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.
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The Crown submits that contemporaneity is satisfied because the purpose, apparent on the face of the statement and having regard to the timing of it, was to provide to the Coroner an outline of the investigations which had occurred and, as well, a conclusion for the purpose of the Coronial Inquest as to what the officer-in-charge of the investigation thought were the relevant facts and circumstances. That conclusion is set out in paragraph 17 of the statement of 28 June 1982.
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When questioned as to how the opinion expressed in paragraph 17 would be admissible in these proceedings, the Crown submitted that the extent and adequacy of police investigations into each of the criminal events with which this trial is concerned has been put in issue by the Accused, and that the opinion, based as it is on the preceding material, directly answers the proposition raised by the Accused about the adequacy of the investigation.
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The Crown also submitted that the final two sentences of paragraph 17 have the effect of this witness, Mr Reid, expressing for proper purposes his opinion as to what had occurred.
Discernment
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In my view, the content of the statement is admissible because it is open to the Crown to adduce evidence in light of the issues formulated in this trial dealing with the extent of police investigations, including who was spoken to and what the Police were told in the course of those investigations.
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Further, although the witness prepared this statement several years after the commencement of these investigations into the murder of Stephen Blanchard, it is clear that the statement was made when the officer reviewed his own notes and the Police file for the purpose of giving evidence in the Coronial Inquest. Accordingly, the statement was, in the relevant sense, made by Mr Reid at the time or soon after the occurrence of the events to which it refers: Dodds v R [2009] NSWCCA 78 at [65]-[68] (McClellan CJ at CL, Simpson and Harrison JJ agreeing).
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It is also of some significance that the conclusion of this witness in the last three lines of paragraph 14 of his statement is a matter which is exculpatory or which may tend to support the exculpation of the Accused as the person responsible for the death of Mr Blanchard. That is a matter which, on the present state of the law, the Crown would either be entitled to or else may be obliged to put before the Court.
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In all of the circumstances, and given that the contents of the statement are admissible, I see no prejudice to the Accused in permitting the evidence to be given by reading out, or being led through this document.
Limitation on Use
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The Crown accepted in submissions in reply that the statement was not being tendered to establish the truth of everything that was said and, accordingly, it seems to me that insofar as the statement recounts explanations or information provided to the Police by third parties, that is, people other than the police officer and the Accused, Mr Warwick, that material should be subject to a s 136 limitation on its use, namely that it is not evidence of the truth of the contents of it.
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In my view, that would be sufficient to cover the material in paragraph 4, after the first sentence; in paragraph 5; in paragraph 6 after the first sentence; and down to the words on the eighth line, "station sedan number DKR 628".
Orders
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I make the following orders:
Specified material in the statement of Mr Lyndon Reid of 28 June 1982 is to 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.
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Decision last updated: 01 February 2019