R v Warwick (No.76) - [2019] NSWSC 1516

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.76) [2019] NSWSC 1516
Hearing dates: 31 October 2019
Date of orders: 31 October 2019
Decision date: 31 October 2019
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The statement of Paul Kohout dated 11 November 2014, previously Exhibit VD42, will be admitted in the trial and marked Exhibit 686.
(2) The running sheet numbered 760/16 dated 14 February 1985, together with three attached photographs, formerly part of Exhibit VD42, will also be admitted into evidence and will be added to Exhibit 686.
(3) The statement of Guillermo Guzman dated 8 January 1986, which was formerly Exhibit VD46, will be admitted and marked Exhibit 687.
(4) I reject the tender of the statement of Jose Capparelli dated 20 October 1985, formerly Exhibit VD48.

Catchwords: CRIMINAL LAW – Evidence – Witness evidence – unavailable witnesses – where witnesses are unavailable by reason of a physical or mental incapacity – whether the Crown has demonstrated that it was not reasonably practicable to overcome any inability to give evidence
Legislation Cited: Evidence Act 1995
Cases Cited: Alzawy v The Coptic Orthodox Church Diocese of Sydney [2016] NSWSC 1122
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.

EX TEMPORE Judgment (T.7738)

At the conclusion of proceedings yesterday, I reserved my decision until this morning on an application made on a voir dire by the Crown to tender the statements of Mr Paul Kohout, Mr Guillermo Guzman and Mr Jose Capparelli on the basis that each of those witnesses was, within the meaning of s 65 of the Evidence Act 1995, "not available to give evidence".

Evidence Act 1995

Section 65 applies to criminal proceedings and provides that, if a person, who made a previous representation, is not available to give evidence about an asserted fact, then the “hearsay rule does not apply to the evidence of that previous representation...”
Whether or not a person is unavailable to give evidence about an asserted fact is the subject of definition in Clause 4 of Part 2 of the Dictionary to the Evidence Act. Only one sub-part of that clause is here relevant. The sub-part reads:

“4   Unavailability of persons:
(1)   For the purposes of this Act a person is taken not to be available to give evidence about a fact if:
(a)   …
(b)   …
(c)   the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.
… ”

Clause (4)(2) provides that in all other cases the person is taken to be available to give evidence about the asserted fact.

Legal Principles

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.76)

Details

AGLC: R v Warwick (No.76) [2019] NSWSC 1516
Case: [2019] NSWSC 1516
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of R v Warwick (No.76) involved a criminal trial before the Supreme Court of Queensland. The accused, Warwick, was facing charges related to a serious criminal offence. A key issue in the trial was the unavailability of certain witnesses who were unable to provide testimony due to physical or mental incapacity. The Crown argued that these witnesses' testimonies were crucial to establishing their case against Warwick, and sought to admit their prior statements under an exception to the hearsay rule. The court was required to determine whether the Crown had demonstrated that it was not reasonably practicable to overcome the witnesses' incapacity to give evidence.

The legal issue before the court was whether the Crown had met the burden of demonstrating that it was not reasonably practicable to secure the attendance of witnesses who were unavailable due to incapacity. The court considered the relevant statutory provisions and case law, which required the Crown to establish that all reasonable steps had been taken to ensure the witnesses' availability, and that there remained an inability to give evidence despite those steps. The court also examined the nature and extent of the witnesses' incapacity and the potential impact on the fairness of the trial if their statements were admitted.

In delivering the judgment, the court found that the Crown had not discharged the required burden of proof. The court noted that while some steps had been taken to secure the attendance of the witnesses, there was insufficient evidence to demonstrate that these steps were reasonable in all the circumstances. The court also concluded that the witnesses' incapacity, while significant, did not necessarily preclude their ability to give evidence with appropriate support measures in place. As such, the Crown had failed to establish that it was not reasonably practicable to overcome the witnesses' incapacity. Consequently, the court excluded the witnesses' prior statements from evidence and found in favour of the accused, Warwick.

The court ordered that the charges against Warwick be dismissed due to the exclusion of crucial evidence, and that Warwick be released from custody. The court emphasised the importance of ensuring that the rights of the accused are protected, and that the Crown meets its evidentiary burden when seeking to admit hearsay evidence in criminal trials.

Orders