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)

1. 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.

2. 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

3. 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 the Panel of the Review reports, as referred to in the email of Stewart Leggat, Detective Inspector, Unsolved Homicide Unit dated 23 October 2019.”

4. Order 2 was not pressed because an agreement had been reached with the NSW Commissioner of Police about the provision of electronic copies of documents produced on subpoena.

5. Additionally, orders 4 and 5 were not pressed because the First Motion containing those orders, (which were directed to the NSW Commissioner of Police) had not been served on the Commissioner. Order 3 was also not pressed by the Accused and, at his request, that part of the First Motion was adjourned until Monday 4 November 2019.

6. As a consequence, the only order in the First Motion that was argued was order 1 seeking the recall of a witness, Mrs Kristen Opas, who had given evidence in the Crown case.

7. In support of the First Motion, an affidavit of Ms Elizabeth Ramsay of A R Conolly & Co, sworn 30 October 2019, was relied upon.

Submissions for the Accused

8. The Accused seeks an order that the Crown recall Mrs Opas to give evidence in relation to material raised in a document forming part of a Review Report apparently compiled by Police in the period between 2005 and 2007 and, as well, other documents which may be produced in answer to a subpoena addressed to the NSW Commissioner of Police.

9. In her affidavit, Ms Ramsay asserted that the Review Report (the relevant part of which was tendered by the Accused and marked Exh 658) included material relevant to the issue of whether there may be a hypothesis about the person responsible for the shooting of Justice Opas being someone other than the Accused. It is to be recalled that the Crown case is that the murder of Justice Opas arose from his work as a judge of the Family Court of Australia. Ms Ramsay suggests that the contents of Exh 658 give rise to a reasonable hypothesis that Justice Opas was murdered by a person (who is not identified) connected with the Judge’s personal life.

10. Detective Russell, the officer in charge of the investigation, was cross-examined by the Accused’s lawyer about the investigations which were made, both by police at the time of, and following, the murder of Justice Opas, and investigations which may have been undertaken subsequently. That cross‑examination revealed, at least, the following:

1. that Detective Bradley had taken a statement from Mrs Opas on or about 28 January 2014, which was later signed in August 2015;

2. that the Accused’s solicitor was aware of the contents of that statement, which included Detective Bradley canvassing with Mrs Opas issues relating to the personal and family affairs of each of the late Justice Opas and herself;

3. that investigating police at or about the time of the murder of Justice Opas had investigated a line of inquiry about whether the murder of Justice Opas was unrelated to his work as a judge;

4. that original running sheets, police statements and coronial records had been disclosed to the Accused which dealt with this line of enquiry undertaken by the original investigating police;

5. that Detective Russell was satisfied during the course of the work of Strike Force Reddan, which commenced in 2013, that no further investigations ought be undertaken with respect to that line of enquiry;

6. that Detective Russell was satisfied that the original investigation was a thorough one which had reached the conclusion that the police had not found any evidence to suggest that the death of Justice Opas may be attributed to anything existing outside of his work as a Judge of the Family Court; and

7. that the recent investigations undertaken by officers of Strike Force Reddan, including the interviewing of Mrs Opas, did not identify any fresh material relating to the line of enquiry directed towards the private lives of, and personal affairs of, Justice Opas or Mrs Opas.

11. The lawyer for the Accused drew attention to the contents of Exh 658. He submitted that the contents of the document contained material which gave rise to questions which properly could, and should, be put to Mrs Opas. This, it was submitted, justified her recall as a witness in the Crown case.

12. The area for exploration in cross-examination of Mrs Opas was orally described in this way, namely, that the contents of Exh 658 refer to the possibility of “… another hypothesis consistent with the innocence of [the Accused] … [namely] that Justice Opas was murdered by someone in connection with his personal life”. It was accepted in oral submissions that any such person was not presently able to be identified.

13. The lawyer for the Accused was then asked to identify how the contents of Exh 658 related to any further questions which could be asked of Mrs Opas. He only identified a risk that he perceived to arise from the decision in Browne v Dunn (1893) 6 R 67 (HL) that he would be “precluded from making submissions on the document if we haven’t put it Mrs Opas”.

Exhibit 658

14. The contents of Exh 658 show, in the context of a review of earlier investigations, that originally police had identified three possible motives for the murder of Justice Opas: 1: an attempted robbery; 2: something arising from his private life; and 3: a disgruntled litigant from the Family Court. The exhibit notes that the first of these possible motives was discounted by police because of the circumstances of the shooting and the absence of any stolen property.

15. It further notes that the private life of Justice Opas and his family were fully investigated and no evidence was found that his death was associated with this line of enquiry. The third possible motive remained open.

16. The various facts set out in Exh 658 dealing with the private lives of Justice Opas and his wife describe social events and interactions with particular individuals. It was submitted by the Accused that this material gave rise to “… an inference to be drawn as to the lifestyle of [Justice] Opas and Mrs Opas, which, although it would not be subject to criticism, would lead to hypotheses as to a motive to murder Justice Opas”.

17. The evidence from Mrs Opas led by the Crown in the trial, (which was not challenged by cross-examination of her), was that after she described to police events surrounding two litigants in the Family Court, she said in her statement, which was admitted as Exh 405:

“13.   I have no knowledge of any other person threatening the life of my husband and to my knowledge we have never received any threatening telephone calls.

14.   During our married life my husband and I were extremely happy and we both lived for each other and the children. I have no knowledge as to the person or persons responsible for his death.”

18. There is no apparent conflict between these statements and the contents of Exh 658, or any inference of the kind which the Accused contends arises from the contents of the exhibit. Section 46 of the Evidence Act 1995, is not engaged.

Discernment

19. The contents of Exh 658 were not written by Mrs Opas. Nor does the body of that exhibit contain any information relating to a reasonable alternate hypothesis as to the guilt of the Accused, of which Mrs Opas is the identified source.

20. As Mrs Opas did not give any evidence which is directly contradicted by the contents of Exh 658, there is no reason to conclude that the Accused is under any legal obligation to raise with Mrs Opas in cross-examination any of the contents in Exh 658. No imputation was being made or was suggested could be made, against Mrs Opas about her conduct relevant to the case, or her credit. The rule in Browne v Dunn was simply not engaged: Browne v Dunn; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [38], [41]; SY v R [2018] NSWCCA 6.

21. If there is an inference which can be drawn from the exhibit about the existence of a reasonable hypothesis, then the Accused is free to rely upon any such inference and hypothesis without any further cross-examination of Mrs Opas.

22. This conclusion was a sufficient reason for me to decline to order the Crown to recall Mrs Opas for further cross-examination because the ground relied upon by the Accused was simply not made out.

Additional Possible Considerations

23. I should also note that it was clear from the evidence in the trial, and from oral submissions, that whilst Exh 658 itself may not have been in the possession of the Accused at the time Mrs Opas gave her evidence, the substance of the matters arising from the private life of herself and her late husband had been canvassed in the statement of Mrs Opas dated 31 August 2015, which was in the Accused’s possession for a considerable period of time before Mrs Opas was called. The Accused elected, at that time, not to raise those matters with Mrs Opas, although it was open to him to do so. In those circumstances, a Court may be justified in reaching the conclusion that a careful forensic decision had been made about what was to be raised with Mrs Opas, and the Accused ought not be allowed to adopt a new and different approach after the evidence of Mrs Opas was concluded. However, it was unnecessary to determine the application by reference to this issue.

24. A further issue may also have arisen, namely, whether once the Crown prosecutor had formally closed the Crown’s case, the Court had the power to require the Crown to re-open its case and recall a witness. As no submissions were received by the Court on this point, I have not considered it further. Rather, I have determined the application on its merits upon the assumed basis that the Court had the requisite power to require the Crown to re-open its case and to recall Mrs Opas.

The Second Notice of Motion

25. The second Notice of Motion (“the Second Motion”) sought four orders. These appeared on the Second Motion in the following terms:

1.   That the Crown disclose all documents shown to Detective Dowson at the time or in preparation for her report of December 2017 concerning the family law files inspected by police and the reports resulting from that inquiry in 1984.

2.    That the Crown disclose all documents which were shown to witnesses in preparation for the witness providing their statement and disclose in relation to each statement or witness a list of the documents provided to the witness to examine.

3.    That the Defence be given leave to further cross-examine Detective Russell.

4.    The Crown disclose all documents relating to the window, and Stegbar including those relating to meetings at Stegbar, the construction of the window and the video demonstration by Detective Tam.

26. At the start of the hearing of order 1 in the Second Motion, considerable discussion occurred about whether the records had already been provided to the Accused, and also whether it was appropriate for the Crown to have an opportunity, by letter, to draw the attention of the Accused’s lawyers as to when the documents had been first provided. In light of that extensive discussion, the Accused did not press order 1.

27. In support of the balance of the orders sought in the Second Motion, a further affidavit of Ms Elizabeth Ramsay sworn 31 October 2019 was relied upon.

Order 2 of the Second Motion

28. The lawyer for the Accused accepted that order 2 raised for consideration the prosecution’s obligation of disclosure. He drew attention to s 142(1) of the Criminal Procedure Act 1986 as the starting point for the substance of the Crown’s obligation of disclosure. He took the Court to the following parts of that section:

“142   Prosecution’s notice

(1)     For the purposes of section 141 (1) (a), the prosecution’s notice is to contain the following—

….

(i)  a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,

(j)  a list identifying—

(i)  any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor’s possession and is not in the accused person’s possession, and

(ii)  the place at which the prosecutor believes the information, document or other thing is situated,

(k)  a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,

(l)  a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person.”

29. Having regard to the terms of the identified provisions, the Accused accepted that he first needed to establish that the documents being sought in order 2 were “… in the possession of the prosecutor”. I note that the term “prosecutor” is defined in s 3(1) of the Criminal Procedure Act as meaning:

“… the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes … an Australian legal practitioner representing the prosecutor.”

30. In the context of this trial, the Crown submitted that the definition would include, in addition to the Director himself, the two counsel briefed to conduct the proceedings and their instructing solicitor. He submitted that it did not include the investigating police officers or any other law enforcement officer. The Accused, in submissions in reply, accepted that this was so.

31. The lawyer for the Accused submitted that this Court should infer that the Crown has in its possession a list of the documents that were shown to each of the witnesses when they were interviewed by the police and their statements were taken, at a time prior to the witnesses being called in this trial.

32. No evidence was put before, or drawn to the attention of, the Court as a basis from which this inference could be drawn. I note that, by this stage of the trial, the Crown has called in its case over 200 witnesses. If it was to be inferred that the Crown had such a list for each witness, then it might reasonably be expected that the existence of such a list would have come to light before now.

33. The Court was informed by the Crown prosecutor that he was not in possession of any such list and, further, that the only knowledge he had as to what documents were shown to a witness came from the contents of the witness statement itself. He noted that the Accused was, like him, in possession of such material.

34. Accordingly, it followed, the Crown prosecutor submitted, that whether a law enforcement officer taking a statement from any one of the witnesses may have shown a witness some other document (not referred to in that witness’ statement) or have kept a list of such statements, it was simply not demonstrated by the Accused, that the Crown prosecutor was in possession of any such document.

35. Finally, the lawyer for the Accused submitted that this Court should call for the “widest possible disclosure” on the part of the Crown so that even if a document was merely shown to a witness, it would be brought within the concept of “relevance” as used in s 142 of the Act.

Discernment

36. The Crown’s obligation of disclosure only applies to documents in its possession “… that would reasonably be regarded as relevant to the prosecution case” or the case for an accused. It cannot be concluded that the Crown’s disclosure obligations are triggered simply because a document, the identity and contents of which are unknown, is shown to a witness in circumstances where that document is not referred to in the witness’s statement or evidence. Much less would a list of documents, and not the documents concerned, fall within such a description.

37. However, even if, contrary to this conclusion, such a document was reasonably regarded as being relevant, there is simply no evidence that the documents sought in the order actually exist, nor that they now or have ever been in the possession of the Crown prosecutor.

38. In my opinion, any inference that such documents must exist is nothing more than speculation on the part of the lawyer for the Accused. There is no available inference which can be drawn on the basis of the evidence (or even the submissions) that the documents sought ever existed. In those circumstances, there is no basis demonstrated for the making of this order.

39. In determining this order on the basis which I have, it has not been necessary to consider the complexities arising from the underlying proposition that the duty of disclosure is not owed directly to an accused in a way analogous to the obligation of discovery in civil proceedings. These complexities include whether it is open to the Court and, if so, in what circumstances, to grant an order at the request of an accused to disclose documents withheld by the prosecution. These difficulties are discussed in Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [47] ff by Leeming JA, with whom R A Hulme J agreed.

40. It has been more convenient to proceed in this way upon the assumption inherent in the application for the Accused that the Court was entitled to make the order sought. If similar orders are sought in the future in this trial, it may be necessary for the Court, assisted by submissions from the Crown and the Accused, to fully consider the application of these complexities in the context of this trial.

Orders 3 and 4 of the Second Notice of Motion

41. Orders 3 and 4 on the Second Motion refer to the same subject matter and can conveniently be dealt with together.

42. During the re-examination of Detective Russell, the Crown tendered a statement of Detective Dowson concerning a window which the police had commissioned a window manufacturing company, Stegbar, to build. The Crown also tendered a video demonstration of a police officer climbing through that constructed window. The statement and video became Exh 669 and Exh 670 respectively. These exhibits when admitted were subject to, on the application of the Accused, a limitation on their use pursuant to s 136 of the Evidence Act, to the following effect:

“The use of the exhibit be limited so that it cannot be used as evidence to support a conclusion of fact that it was possible for an adult male to access the Kingdom Hall through an open awning window.”

43. As deposed to in paragraph 11 of Ms Ramsay’s affidavit of 31 October 2019, the lawyers for the Accused sought to have Detective Russell recalled for further cross-examination “… in relation to the document and video tendered through him in re-examination".

44. In oral submissions, the lawyer representing the Accused relied on paragraphs 10 to 19 of Ms Ramsay’s affidavit. He provided no further elaboration.

45. Ms Ramsay’s affidavit set out what she said were inaccuracies in the window replica built by Stegbar and the demonstration video as the basis for an order requiring the recall of Detective Russell. At paragraph 18, Ms Ramsay also describes how Detective Russell:

“…had formed a theory and reached a conclusion about how he says an adult male could have entered through the window and has then subsequently sought to support that theory.”

46. Finally, Ms Ramsay points to the Crown’s lack of disclosure concerning the contents of meetings with Stegbar. She contends, particularly in light of enquiries made by her in the last two weeks with employees of Stegbar, that there are inaccuracies of such a kind as to give rise to circumstances where the Court ought require the Crown to recall Detective Russell.

Discernment

47. I will proceed with consideration of the submissions with respect to these orders in a way similar to that above, namely upon the assumption that although the Crown has closed its case, the Court nevertheless retains a discretionary power to make the orders sought.

48. The material which the Accused seeks to cross-examine upon was tendered in the course of re-examination. The basis for that tender was that in the course of the cross-examination of Detective Russell on the topic of the investigations carried out after 2013 into the type, size and design of the windows located in the Kingdom Hall prior to the explosion of the bomb in July 1985, a challenge had been made to his opinion about the feasibility of a person accessing the Kingdom Hall by stepping through an awning window. The questions also touched upon the subject of disclosure to the Accused of various details about the windows including their nature, size and layout.

49. The cross-examination also addressed one or more visits by Detective Sergeant Dowson to the offices of Stegbar to obtain details about windows of the kind installed in the Kingdom Hall. Questions were addressed as to the detail of what had transpired between Detective Dowson and employees of Stegbar during that visit. It was put to Detective Russell that the replica window made by Stegbar was a guess and was not an accurate replica – a proposition which he denied, asserting that it was as accurate to within 1cm.

50. Finally, significant cross-examination of Detective Russell took place regarding his opinion about how a person might have been able to climb through an awning window of the kind and type used at the Kingdom Hall, and whether there was sufficient space for a person to enter the Kingdom Hall in that way.

51. In the course of the cross-examination neither Exh 669 or Exh 670 were shown to Detective Russell. However, it is to be inferred from the questions that were asked in cross-examination that the two exhibits were in the possession of the Accused prior to the cross-examination occurring.

52. Any queries which the Accused wished to address upon this subject matter could be, and were, taken up with Detective Russell during cross‑examination. Although the exhibits were not identified and tendered in chief, in light of the contents of the cross‑examination, they were properly admissible during the course of evidence in reply. The fact that this may happen was clear from the content of the questions asked which appeared to follow a carefully considered course determined by the lawyers for the Accused.

53. It is not open now for the Accused to seek to revisit this subject matter with Detective Russell because of the tender by the Crown of Exh 669 and Exh 670 in re-examination. The state of the evidence on this topic has been brought about by the considered course of cross-examination from Detective Russell. I am not prepared to exercise my discretion to permit a second cross-examination of Detective Russell on this subject matter on the basis that one of the solicitors in the firm acting for the Accused, albeit a senior solicitor, who did not conduct the cross-examination of Detective Russell, has formed the view that there are inaccuracies which could and ought to be the subject of further cross‑examination.

54. There is also the issue of whether any further cross-examination of Detective Russell may have the effect of negating the limitation on use of the content of the Exh 669 and Exh 670. However, it is unnecessary to resolve this question which would likely require careful attention to the terms of the questions actually asked. It is premature to take this consideration into account, and I do not.

Conclusion

55. For these reasons, I determined that the Orders below should be made at the conclusion of argument on 31 October 2019.

Orders

56. I make the following order:

1. Order 1 of the Notice of Motion dated 30 October 2019 and Orders 1-4 of the Notice of Motion dated 31 October 2019, those Notices of Motion be dismissed.

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Decision last updated: 12 November 2019