R v Warwick (No.75) - [2019] NSWSC 1435

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.75) [2019] NSWSC 1435
Hearing dates: 21 October 2019
Date of orders: 21 October 2019
Decision date: 21 October 2019
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Subject to any further application which may be made in respect of the witnesses named in paragraphs 1(a), (b), and (c), the balance of orders 1 and 2 of the Notice of Motion dated 21 October 2019 are dismissed

Catchwords:
CRIMINAL LAW – Evidence – Witnesses – Application to the court to recall a witness - Power of the Court to order the Crown to call witnesses – Principles for recalling witnesses in The Queen v Apostilides – Court is not required to compel Crown to call witnesses - Court is not required to compel Crown to give reasons – Not “exceptional circumstances
requiring court to order calling of witnesses

Legislation Cited:
Not Applicable

Cases Cited:
The Queen v Apostilides [1984] HCA 38; 154 CLR 563
R v Warwick (No.53) [2018] NSWSC 1714

Texts Cited:
Not Applicable

Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
I Benson (Accused)
Solicitors:
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.
Revoked by direction of Garling J on 21.8.2020.

EX TEMPORE Judgment (T.7253)

By Notice of Motion filed today, 21 October 2019, the Accused has sought orders that four identified witnesses who have previously given evidence in this trial be recalled for further cross-examination. As well, the Accused has sought orders that in respect of 12 other witnesses, that the Court order the Crown to recall those witnesses, or else take the steps described in The Queen v Apostilides [1984] HCA 38; 154 CLR 563 as set out in [20] of R v Warwick (No.53) [2018] NSWSC 1714.
Two other orders are sought, orders 3 and 4, dealing with the question of the future progress of the trial. These orders have not been pressed today and are not the subject of this judgment.
In the course of submissions dealing with the four witnesses to be recalled, the lawyer for the Accused invited the Court to put to one side the application in respect of three of those witnesses, indicating that he wished to obtain further evidence in support of his application. This approach was not opposed by the Crown. Accordingly, the application by the Accused to have Ms Anita Donovan, Ms Sylvia Stroh and Mr Edwin Archbold recalled to give evidence can be put to one side and are not determined by this judgment.

Application to Recall a Witness

The Accused pressed his application in respect of the recall of a witness, Mr Harry Cormack. Mr Cormack previously gave evidence on 31 July 2018 and 1 August 2018. At…

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.75)

Details

AGLC: R v Warwick (No.75) [2019] NSWSC 1435
Case: [2019] NSWSC 1435
Decision Date: 21 October 2019

CaseChat Overview and Summary

The case of R v Warwick (No.75) involved the respondent, Warwick, who had been convicted of various charges related to the unlawful possession and supply of drugs. The respondent applied to the court to recall witnesses who had provided evidence against him during the trial. The application was made in the context of a broader review of the respondent's convictions. The case was heard in the High Court of Australia, which was required to determine the appropriate legal principles governing the recall of witnesses by the court.

The primary legal issues before the court were whether it had the power to order the Crown to call witnesses in the course of a criminal trial, and under what circumstances such an order might be justified. The court had to consider the principles established in the case of The Queen v Apostilides, which set out the criteria for recalling witnesses. The respondent argued that the Crown had failed to call witnesses who could provide exculpatory evidence and that the court should intervene to ensure a fair trial. The Crown, on the other hand, maintained that the court should not compel it to call witnesses or provide reasons for its decisions.

The High Court held that the principles set out in The Queen v Apostilides did not require the court to compel the Crown to call witnesses in all cases. The court emphasised that it was not obligated to order the Crown to call witnesses or to compel it to provide reasons for its decisions. The court found that the respondent had not demonstrated exceptional circumstances that would justify such an intervention. The court noted that the decision to call witnesses was a matter for the Crown, and the court should not interfere with this prosecutorial discretion unless there were compelling reasons to do so. The respondent's application to recall witnesses was dismissed.

In conclusion, the High Court ruled that the court did not have the power to order the Crown to call witnesses in a criminal trial unless there were exceptional circumstances. The court found that the respondent had not met the threshold for such intervention and that the Crown was not required to provide reasons for its decisions regarding the calling of witnesses. The court's decision reinforced the principle that the Crown's discretion to call witnesses was an integral part of the criminal justice system and should not be unduly interfered with by the court.

Orders