R v Warwick (No.62) - [2018] NSWSC 2028

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.62) [2018] NSWSC 2028
Hearing dates: 17 and 18 December 2018
Date of orders: 20 December 2018
Decision date: 20 December 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) The evidence of Robert Barnes commencing at T.3636 through to and including T.3790 and from T.3804 through to and including T.4149, being evidence taken on the voir dire, is admitted into evidence on the trial and is to be taken to be evidence given in the course of the trial.
(2) Exhibits VD5 through to VD39 inclusive are admitted into evidence and will be marked Exh 322 through to and including Exh 356.

Catchwords: EVIDENCE – expert evidence taken on the voir dire relating to high explosives – whether evidence is relevant in accordance with s 55 and s 56 of the Evidence Act – whether s 79 of the Evidence Act is activated – whether there is any reason to exclude the evidence under s 135 or s 137 of the Evidence Act – evidence is relevant and capable of acceptance – evidence is admissible
Legislation Cited: Evidence Act 1995
Cases Cited: IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
The Queen v Fyffe [1991] 2 VR 72
The Queen v Heather Dianne Parker (Court of Appeal (Vic) 10 August 1995, unrep)
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.5759)

Introduction

As with previous interlocutory judgments, these ex tempore reasons do not repeat detail previously given about the charges before the Court on the Indictment. Nor do they repeat the outline of the Crown’s case. Familiarity with the previous judgments is assumed.

Voir Dire Examination

In the period between 15 October 2018 and 26 October 2018, the evidence of Mr Robert Barnes was taken on a voir dire. In the course of that voir dire examination, 34 exhibits were tendered and marked VD5 through to VD39 (inclusive). The voir dire examination was conducted in circumstances where it was made clear that the Accused opposed the admission of the evidence of Mr Barnes on a number of bases, but it was accepted that all objections could be taken and argued at a later time.

Crown’s Application

At the conclusion of the evidence, the Court indicated that if the Crown wished to tender the evidence of Mr Barnes taken on the voir dire as part of the trial, the Court would take submissions from both parties once they had sufficient time to consider the entirety of the evidence and the authorities which are applicable.
Those submissions were taken earlier this week, on 17 and 18 December 2018. Both parties provided written submissions at or before that time.
This…

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.62)

Details

AGLC: R v Warwick (No.62) [2018] NSWSC 2028
Case: [2018] NSWSC 2028
Decision Date: 20 December 2018

CaseChat Overview and Summary

The case of R v Warwick (No.62) involved the respondent, Warwick, who was charged with the unlawful possession of high explosives. The court was tasked with determining the admissibility of expert evidence provided by the prosecution, which pertained to the nature and characteristics of the explosives found in Warwick's possession. The trial judge conducted a voir dire to ascertain whether the expert evidence was relevant and admissible under the Evidence Act.

The court was required to determine whether the expert evidence was relevant in accordance with sections 55 and 56 of the Evidence Act. Furthermore, the court had to consider whether section 79 of the Evidence Act applied, which pertains to the admissibility of expert evidence. Additionally, the court needed to assess whether there were any grounds to exclude the evidence under sections 135 or 137 of the Evidence Act, which allow for the exclusion of evidence if it is prejudicial, confusing, or a waste of time.

The court found that the expert evidence was relevant and capable of acceptance by the jury, as it related directly to the nature of the high explosives in question. The court held that the evidence was not excluded under section 79, as the expertise of the witness was not necessary to assist the court in understanding a fact or opinion that was directly apparent from the evidence. The court also concluded that there was no reason to exclude the evidence under sections 135 or 137, as the probative value of the evidence outweighed any potential prejudicial effect. Consequently, the court ruled that the expert evidence was admissible.

The court ordered that the expert evidence be admitted as part of the prosecution's case. This decision allowed the jury to consider the expert's testimony in determining the nature and characteristics of the explosives, which was crucial to the prosecution's case against Warwick.

Orders