R v Warwick (No.77) - [2019] NSWSC 1564

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.77) [2019] NSWSC 1564
Hearing dates: 31 October 2019
Date of orders: 31 October 2019
Decision date: 11 November 2019
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Order 1 of the Notice of Motion dated 30 October 2019 and Orders 1-4 of the Notice of Motion dated 31 October 2019, be dismissed.

Catchwords: CRIMINAL LAW – Trial – Evidence – Witnesses – leave to re-call witnesses after close of Crown case – adjournment – the duty of disclosure
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Browne v Dunn (1893) 6 R 67 (HL)
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
R v Small (1994) 33 NSWLR 575; (1994) 72 A Crim R 462
SY v R [2018] NSWCCA 6
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.

Judgment (T.7743)

After the close of the Crown case on 31 October 2019, the lawyers for the Accused filed two separate Notices of Motion, each seeking various orders. The first Notice of Motion is dated 30 October 2019. The second Notice of Motion is dated 31 October 2019. The Motions were heard together.
At the conclusion of the hearing on 31 October 2019, I made orders dismissing the orders which were pressed in the Motions. I indicated that I would publish reasons in due course. These are my reasons.

First Notice of Motion

The first Notice of Motion (“the First Motion”) originally sought three orders. A short time after the First Motion was filed the lawyers for the Accused substituted a further version of the First Motion which included two additional orders. The five orders sought in the final form of the First Motion were in the following terms:

“1.   That Mrs Opas be recalled for further cross examination
2.    That the Commissioner of NSW Police provide on flash drive or other electronic means the documents produced on subpoena on 29 and 30 October 2019 and thereafter in answer to the subpoena issued by the Defence.
3.    That the proceedings be adjourned for a period of no less than 5 days, to permit the Defence to examine the documents produced by the Commissioner of NSW Police in answer to the subpoena
4.    That the Police disclose through the Crown the names and identity and origin of the photographs in the photo books and photo board shown by the police to witnesses in the 1980s.
5.    That the Police disclose through the Crown the decision of the Panel and a copy of the determination by…

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.77)

Details

AGLC: R v Warwick (No.77) [2019] NSWSC 1564
Case: [2019] NSWSC 1564
Decision Date: 11 November 2019

CaseChat Overview and Summary

The case of R v Warwick (No. 77) involved a criminal trial before a court where the defendant, Warwick, was accused of a serious criminal offence. The nature of the dispute revolved around the admissibility and timing of certain evidence, specifically the Crown's ability to recall witnesses after the close of their case. The matter was brought before the court to determine whether the Crown was entitled to re-call witnesses following the close of their case and if an adjournment should be granted to allow for this. The court was required to balance the duty of disclosure between the parties with the need to ensure a fair trial.

The central legal issues that the court had to decide were whether the Crown could be granted leave to re-call witnesses after the close of their case and whether an adjournment should be granted to allow for this. The court had to consider the principles of fairness and the duty of disclosure in criminal proceedings, ensuring that both the prosecution and the defence had a fair opportunity to present their cases. The court also had to assess the impact of the potential adjournment on the efficiency of the judicial process and the rights of the defendant.

In delivering its decision, the court acknowledged the importance of the duty of disclosure in criminal trials. However, it emphasised the need for a balanced approach that considered the rights of the defendant and the efficiency of the judicial process. The court found that while the duty of disclosure was significant, it was not absolute and could be weighed against other considerations, such as the fairness of the trial. Ultimately, the court determined that the Crown was not entitled to re-call witnesses after the close of their case, and an adjournment would not be granted. The decision underscored the importance of maintaining the integrity of the trial process and ensuring that both parties had an opportunity to present their evidence in a timely manner.

The final orders of the court were that the Crown was not granted leave to re-call witnesses after the close of their case, and no adjournment would be granted to allow for this. The court's decision was based on a careful consideration of the principles of fairness, the duty of disclosure, and the efficient administration of justice. This decision provided clarity on the limitations of the Crown's ability to recall witnesses and reinforced the importance of adhering to the established procedures in criminal trials.

Orders