R v Warwick (No.71)
[2019] NSWSC 1241
•09 September 2019
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Warwick (No.71) [2019] NSWSC 1241 Hearing dates: 09 September 2019 Date of orders: 09 September 2019 Decision date: 09 September 2019 Jurisdiction: Common Law Before: Garling J Decision: (1) The evidence is relevant and admissible and I will admit the bundle of photos and photocopies taken by this witness as Exh 461.
Catchwords: CRIMINAL LAW – Evidence – Whether evidence to establish that a person may have access to knowledge about explosives is admissible – relevance Legislation Cited: Not Applicable 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)
I Benson (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co
File Number(s): 2015/222068 Publication restriction: Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236.
EX TEMPORE Judgment (T.6601)
A Book is Found but not Seized
-
In the course of a search conducted at the premises of the Accused at 25 Tallowood Avenue, Casula, on 31 July 1984, a book was identified on the bookshelf.
-
The book was entitled "Practical Coalmining", (the “book”). A photograph of the book reveals that the author can be seen to be George L Kerr, and the publisher to be Charles Griffin & Co Limited. The book itself was not seized. There is no evidence of any observation made in July 1984 as to the contents of the book or which edition the book was.
What were the Contents of the Book?
-
In 2015, in the course of more recent investigations, Detective Senior Constable Staples of the Unsolved Homicide Squad, undertook a series of enquiries intending to establish the content of the book. Her enquiries revealed that the 5th Edition was published in 1914. The book is described, on its cover sheet, as "A Manual for Managers, Under-Managers, Colliery Engineers and others".
-
The 5th Edition is also described as "entirely revised, reset throughout and enlarged". The 5th Edition comprises 778 pages.
-
The evidence of DSC Staples is that her enquiries demonstrate that the 5th Edition differed from the Edition produced in 1900, but was largely the same as the Edition produced in 1905.
-
It is clear that the external appearance of the 5th Edition is very similar to the photograph of the book taken during the course of the search in July 1984.
-
The 5th Edition of the book also reproduces the preface to the 1st Edition, which was written by the author in 1900.
-
Chapter 4 of the 5th Edition, (occupying pages 101 to 119) is entitled "Explosives" and contains explanatory material regarding the nature of available explosives and the nature of detonators, including different fuses available to be used. The chapter describes how detonators are fixed, how charges are fired and the existence, type and nature of safety fuses. It also includes a description of how one goes about igniting detonators by electricity, or else using electric fuses. A similar chapter on explosives was included in the earlier editions.
-
After the 5th Edition was published in 1914 (according to the enquiries made by DSC Staples) there have been three further editions published in 1920, 1922 and 1925. DSC Staples' enquiries do not permit her to say whether any of those later three editions have been revised or updated from the 5th Edition. However, as I have earlier indicated, the 1914 edition comprised 778 pages. DSC Staples' evidence is that the 1922 edition also comprised 778 pages. I would readily infer that the 1920 edition, being the edition after the 5th Edition and the 1922 edition, would also comprise the same number of pages. I would infer, from the fact that the same number of pages existed between the 5th Edition and the subsequent editions in 1920 and 1922, that the actual content of the book was largely the same. Any variation is likely not to be very extensive, if there is any such variation.
-
The evidence is silent as to the 1925 edition in terms of whether it has been revised or updated and whether or not it has the same number of pages as the 5th Edition. Except by inference, the Court is not in a position to draw any conclusion about the content or scope of the 1925 edition of the book. If it is not already obvious, I shall note that the evidence suggests that the 1925 edition was the last one published.
The Proposed Exhibit
-
The Crown submitted that the Court should admit the exhibit which is tendered, which is a photograph of the outside of the 5th Edition of the book, (which appears the same as that held in the State Library of New South Wales) and photocopies of the relevant introductory pages, the Contents pages, the whole of Chapter 4 and the Index pages of the 5th Edition.
Crown Submissions
-
The Crown submitted that the exhibit is relevant on two bases:
first, it describes the general nature and content of the book which, from its description as a Manual, is akin to a textbook of the kind which was in use in the coalmining area and, based upon that general nature and content and having regard to the fact that a copy of the book was found at the Accused's residence, the Court would infer that the Accused had an interest in, and maintained an interest in, the work of his father whom, the evidence suggests, was employed in the coalmining industry as a shot firer's assistant;
secondly, the Crown submitted that it is relevant because it provides an available source of knowledge about explosives, to which the Accused could have had reference, in the period between March 1984 and July 1984 when Events 3, 4 and 5 occurred. It is to be recalled that Events 3, 4 and 5 each involved the explosion by use of a detonator and, in two cases, a safety fuse at the premises described.
-
There is a clear issue in the proceedings as to whether the Accused had, or had access to a source of, knowledge about different types of explosives, the setting of them, how they might be detonated, and the different methods of initiating explosive devices. The Accused's lawyers have made it clear that it will ultimately be their case that the Crown has not proved the existence of any knowledge of explosives on the part of the Accused. The Crown submitted that the presence of a manual about coalmining, which includes a chapter on explosives, is relevant to that issue.
-
The tender of this exhibit, of course, does not establish knowledge on the part of the Accused as to matters relating to explosives. It merely proves, on the Crown's submission, that at his house he had access to a book, which is a source of information on that question.
Submissions of the Accused
-
The lawyers for the Accused submitted that the issue of relevance must depend upon proof of the precise content of the book on the Accused's bookshelf. They submit that the Crown has not established what the contents of the 1920, 1922 and 1925 editions may be and that the evidence of DSC Staples as to her enquiries do not enable the Court to conclude what those contents may be. Unless this is established, the Accused argues, the relevance of the contents of the 5th Edition is not clearly demonstrated.
Discernment
-
I accept the Accused’s submission insofar as the 1925 edition is concerned. That is because there is simply no evidence as to what is in that edition. Equally, there is no evidence that the book photographed by the police and left with the Accused was the 1925 edition. It could well have been one of the earlier editions. However, I am satisfied that it is unlikely that a chapter on explosives would have been entirely excluded from the 1925 edition. This satisfaction is based on an inference from the nature of the book, namely; that it is a Manual relating to a wide range of issues with respect to practical coalmining, including explosives, and that a chapter on explosives was included in the editions after the complete revision of 1914, up to and including 1922. Quite what the content of that chapter is, of course, cannot be known with any precision.
-
The Crown’s case in respect of the counts on the Indictment is an entirely circumstantial one. The Crown seeks, with a range of evidence, to establish facts and circumstances from which ultimately it will submit that the Court ought to conclude that the Accused was responsible for each of the Events, the subject of the Indictment. In such a case, the weight which may be accorded to an individual item can only be assessed at the conclusion of the evidence, by reference to all of the facts and circumstances. Even if the proposed exhibit has some, but apparently very little, weight, it will be a matter for later assessment as to what weight the contents of this exhibit would ultimately carry. The issue I am considering now is solely wether the evidence which the Crown seeks to tender admissible? The principal question to be answered, when considering the admissibility of evidence of the kind here sought, is whether it is relevant.
-
In my view, sufficient relevance has been shown, in the argument of the Crown, to make the contents of this proposed exhibit relevant. Quite what weight the exhibit will ultimately have will need to be assessed at the conclusion of the evidence. The Court will consider, in light of all of the evidence, whether it should discount this material from having any weight at all because the contents of the 1925 edition are not before the Court. But that is a matter which will need to be addressed at the conclusion of the evidence.
Orders
-
I make the following order:
The evidence is relevant and admissible and I will admit the bundle of photos and photocopies taken by this witness as Exh 461.
**********
Amendments
05 November 2019 - Addition of suppression order on coversheet
Decision last updated: 05 November 2019