R v Warwick (No.60)
[2018] NSWSC 1875
•05 December 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.60) [2018] NSWSC 1875 Hearing dates: 05 December 2018 Date of orders: 05 December 2018 Decision date: 05 December 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) The bundle of documents formerly MFI C-L are admissible and ought be admitted and marked Exh 313.
(2) Order pursuant to s 136 of the Evidence Act 1995 that the exhibit be subject to a limitation on use, namely, that the contents of the documents are not evidence of the truth of the representations contained in them but are evidence of nature and extent of the inquiries made by the NSW Police.Catchwords: EVIDENCE – relevance – bundle of police running sheets – non-hearsay purpose – relevant for purpose other than as opinion evidence – not excluded pursuant to ss 135 or 137 of the Evidence Act 1995 – evidence admitted subject to a limitation on use 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.5510)
The Proposed Exhibit
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In the course of the evidence of Mr Robert Myers, a retired New South Wales Police officer, he was shown and identified a bundle of running sheets relating to various inquiries made by the Homicide Squad, of which he was the officer in charge, following the explosion of a bomb at the Kingdom Hall of the Jehovah's Witness Church at Casula on 21 July 1985. The bundle of running sheets were marked MFI C-L.
Relevance
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The Crown seeks to tender those running sheets for a purpose which it submits is relevant, namely, to address an issue raised in the proceedings by the Accused as to the comprehensiveness and adequacy of the Police investigation of each of the Events, the subject of the Indictment, but in particular the Kingdom Hall bombing.
Hearsay Material
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The Accused opposes the admission of the running sheets on a number of bases. First, the Accused submitted that the running sheets are documents which contain hearsay statements and opinions which, in circumstances where the makers of those statements and the authors of the running sheets are not to be called, would mean that the documents should not be admitted.
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In response to that submission, the Crown submitted that the evidence was admissible for another purpose, namely, dealing with the extent and adequacy of Police investigations.
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Accordingly, the Crown submitted that so far as the documents contain evidence of facts, s 60 of the Evidence Act 1995 would permit their admission, notwithstanding their hearsay content, and insofar as the documents may contain an opinion, s 77 of the Evidence Act would permit the admissibility of the document.
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I accept the Crown's submissions that these sections would permit the documents to be admitted, notwithstanding that they contain hearsay material, because they are relevant for another purpose.
Evidence Act 1995 - ss 135 and 137
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The Accused submitted that the Court, pursuant to s 137, ought refuse to admit the documents and their contents because the probative value of them is outweighed by the danger of unfair prejudice to the Accused.
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It was submitted that the Accused is unfairly prejudiced by the tender of the documents because he is deprived of the opportunity to cross-examine the police officer who undertook the investigations about the contents of the running sheets and that he is also deprived of the opportunity to cross‑examine any other police officer who has knowledge of the matters referred to in the running sheets with respect to further inquiries which were undertaken (if any), the existence of other records and the results of those other inquiries.
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As well, the Accused submitted that, in respect of documents not created by Mr Myers, the current witness, there is a danger that the Court may misapprehend the content of those running sheets in the absence of evidence from the Police officer who did create each sheet. Such misapprehension would lead, it is submitted by the Accused, to a danger of unfair prejudice to him that outweighs the probative value of those running sheets.
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In my view, whether by reference to s 135 or s 137 of the Evidence Act, there is no reason to conclude that in a judge-alone trial there is any risk that the Court may misapprehend the content of running sheets and give to the evidence in those running sheets any greater weight than they would otherwise carry, nor misunderstand what is written in them. After all, to the extent that these running sheets ultimately prove to be directly relevant to a fact in issue, the Court will have the benefit of submissions from both the Accused and the Crown with respect to the way in which the running sheets ought be interpreted and used.
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I do not accept the Accused's submissions which relate to any potential misapprehension by the Court of the content of the running sheets.
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In the course of submissions it became apparent that the Crown would accept, if these running sheets were admitted for the purpose earlier identified, that there should be, pursuant to s 136 of the Evidence Act, a limitation on the use to which the evidence may be put by the Court, namely, the evidence would not be used as the truth of the representations contained in it but, rather, as evidence of the investigations undertaken and the results of those investigations by the Police at that time.
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In the course of further submissions, the solicitor for the Accused accepted that if such a limitation on use was made, the unfair prejudice described earlier with respect to the inability of the defence to cross-examine Police officers who made the running sheets or who had undertaken the inquiries recorded in the running sheets, would be significantly diminished, if not entirely removed.
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Given the limitation on use accepted by the Crown, I am not satisfied that the probative value of these documents is outweighed by the danger of unfair prejudice to the Accused and, accordingly, I am not satisfied that s 137 of the Evidence Act requires the Court to refuse to admit the evidence.
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As well, having regard to the terms of s 135 of the Evidence Act, I am not satisfied that the Court ought refuse to admit the evidence as I am of the same view, namely, that there is no unfair prejudice to the Accused. I am also not persuaded that the evidence would be misleading or confusing or would cause or result in undue waste of time.
Conclusion
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In those circumstances, and in the absence of any other submissions in opposition to the admissibility of the document, I conclude that the bundle of documents, formerly MFI C-L, are admissible and ought be admitted and marked Exh 313.
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I order pursuant to s 136 of the Evidence Act that the exhibit be subject to the limitation on use, namely, that the contents of the document are not evidence of the truth of the representations contained in it but are evidence of the fact of, nature and extent of the inquiries made by the NSW Police.
Orders
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I make the following orders:
The bundle of documents formerly MFI C-L are admissible and ought be admitted and marked Exh 313.
Order pursuant to s 136 of the Evidence Act 1995 that the exhibit be subject to a limitation on use, namely, that the contents of the documents are not evidence of the truth of the representations contained in them but are evidence of the nature and extent of the inquiries made by the NSW Police.
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Decision last updated: 06 February 2019
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