R v Warwick (No.74)
[2019] NSWSC 1530
•19 September 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.74) [2019] NSWSC 1530 Hearing dates: 19 September 2019 Date of orders: 19 September 2019 Decision date: 19 September 2019 Jurisdiction: Common Law Before: Garling J Decision: Statement of Christopher Jurgeit of 27.10.2014 and attached records are admitted and marked Exh 571.
Catchwords: CRIMINAL LAW – Evidence – Where the Crown seeks to tender photocopies of an original document – Whether the Crown has to prove the authenticity of the documents – On the balance of probabilities, whether the photocopies are authentic replicas of the original 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)
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.6982)
Proposed Exhibit
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The Crown seeks to tender a Statement of Christopher Jurgeit dated 27 October 2014. Mr Jurgeit was formerly a senior officer of Fire and Rescue NSW (which was previously known as the NSW Fire Brigade). Together with that statement, the Crown seeks to tender copies of the original Occurrence Books which underlie the statement and which provide information as to when the Accused was or was not on duty as an officer of the NSW Fire Brigade by reference to a roster and attendance records at the Liverpool Fire Station.
Relevance
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The Crown case is that at or about the time of each of the seven Events, which give rise to the counts on the Indictment presently before the Court, the Accused was not on duty as a fireman. This, the Crown contends, points to a conclusion that the Accused had the opportunity to commit each of the offences.
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The prosecution seeks to address that relevant fact, in part, by tendering contemporaneous records kept by the NSW Fire Brigade at that time of the attendance of the Accused at his workplace.
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Mr Jurgeit has had a lengthy service as an officer of the NSW Fire Brigade, including as a fire-fighter, a relieving Station Officer and then a permanent Station Officer, and thereafter in senior executive positions. He says that he has, for many years, been familiar with the use of the Occurrence Books maintained at each fire station as a standard record of attendance and events.
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It is apparent from Exh 54, which was tendered earlier in the trial and which is the original of the Occurrence Book for the Liverpool Fire Station numbered 2889, that Occurrence Books are kept in common form and completed by many different people as part of their ordinary duties.
The Source of the Original Occurrence Books
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Following a request from police, Mr Jurgeit asked the Archive Section of Fire and Rescue NSW, which is a part of the Records Management Unit of that organisation, to provide him with the originals of five Occurrence Books being that for Fairfield Fire Station numbered 2304, and being those for the Liverpool Fire Station,numbered 2889, 2890, 2891 and 2917.
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Mr Jurgeit was provided by the Archive Section with those five Occurrence Books. He examined the books and was satisfied that they were the original books that he had requested. He provided the books to Detective Rullo, one of the investigating police. Subsequently, Detective Rullo provided him with photocopies of various pages from those books. Mr Jurgeit then checked those photocopies and has expressed the opinion that the photocopies were accurate copies of the entries in the original Occurrence Books from the relevant pages.
Objection by the Accused
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Objection is taken to the admission into evidence of the statement of Mr Jurgeit and the extracts of the Occurrence Books attached to it, on the basis that the Crown has not proved the authenticity of the books. It is submitted that no-one has been called by the Crown from the Archive Section or the Records Management Unit to give evidence about the particular storage methodology of that section, the retrieval of these books and hence the authenticity of the original Occurrence Books given to Mr Jurgeit.
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The Accused also objects to the copies being admitted into evidence.
Discernment
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The fact that the records now sought to be tendered are photocopies is not a reason to reject the evidence. Section 48 of the Evidence Act 1995 permits evidence to be adduced of the contents of a document in question by tendering a copy of the document. As well, the original Occurrence Books are available to be inspected by the lawyers for the Accused. It is not said that the photocopies are not an accurate reproduction of the entries in the Occurrence Books.
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The issue is, therefore, whether I am satisfied, on the balance of probabilities, that the original Occurrence Books form part of the records of the NSW Fire Brigade and that the books produced to this witness are originals.
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In coming to that conclusion, amongst other things, I am entitled to look at the entries in the Occurrence Books to see what inferences may be available to be drawn from the contents on those pages: see s 58(1) Evidence Act. As I have earlier indicated, there is in evidence, as Exh 54, the original of Occurrence Book numbered 2889 from the Liverpool Fire Station. The fact that that is in evidence enables me to assess the nature of the Occurrence Book, how it is kept, what it looks like and the type and content of the entries.
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Looking at Exh 54 and comparing it with the way in which the documents now sought to be tendered appear, I am well-satisfied that the evidence of this witness, that he was provided with the original Occurrence Books, is sufficient to identify those books as the originals and sufficient to provide a basis to conclude that the records with which this witness was provided were authentic records of the NSW Fire Brigade.
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In coming to that conclusion, I also have regard to what is described by this witness as the existence of a Record Management Unit whose task was to keep in good order the original records of the NSW Fire Brigade and those of its successor, Fire and Rescue NSW. The fact is that each book is identified by a specific individual number and that, so far as the Liverpool Fire Station is concerned, the numbers bear a logical sequence, is also a relevant consideration. I also have regard to, in the absence of any cross-examination challenging Mr Jurgeit’s evidence about the Occurrence Books or other contrary evidence, the improbability of a book appearing to be an original Occurrence Book and being produced from the archives of a government undertaking, being anything other than that which it appears to be.
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I am satisfied that the records retrieved at the request of Mr Jurgeit and used by him for the purpose of compiling his statement are authentic records of the NSW Fire Brigade and that his evidence is admissible. The statement of Christopher Jurgeit dated 27 October 2014 and attached records will be admitted as evidence in the Crown Case and marked Exh 571.
Orders
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I make the following order:
Statement of Christopher Jurgeit of 27.10.2014 and attached records are admitted and marked Exh 571.
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Decision last updated: 06 November 2019