R v Warwick (No.83) - [2019] NSWSC 1757

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.83) [2019] NSWSC 1757
Hearing dates: 4 December 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
The tender of the report of Dr Pulman of 30 March 2016 marked MFI E-T, is rejected.

Catchwords: EVIDENCE – Relevance – Expert evidence – s55 of the Evidence Act - where the opinion does not relate to the skills and capacity of the Accused when the events occurred – the evidence if it was accepted, could not rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact in issue in the proceedings
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:
K McKay / G Christofi (Crown)
A R Conolly / 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.8329)

Tender of Expert Report

During the course of the calling of witnesses by the Accused in answer to the Crown case, the Accused tendered the expert opinion of Dr Susan Pulman, which is set out in a report dated 30 March 2016, which was marked MFI E-T.
The Crown objected to the admission of that expert opinion on the basis of relevance. It indicated that if the opinion was held to be relevant, it did not oppose the expert opinion of Dr Pulman being adduced by the tender of the report, and the Crown did not wish to cross-examine her upon it.

The Expert

Dr Pulman is a forensic psychologist and clinical neuropsychologist. She has the requisite formal qualifications to support that speciality and, as well, she has a knowledge of psychology gained from practical experience which is sufficient to qualify her as an expert for the purpose of giving the opinions which she does: s 79 Evidence Act 1995.

Submissions of the Accused

Submissions on behalf of the Accused put that the issue in the trial to which the evidence of Dr Pulman would be relevant is an assessment of the Accused's skills and capacity to undertake, or participate in, the planning and organisation necessary for the Events, the subject of this trial. As well, the opinion is said to be relevant to the capacity of the Accused to construct the bombs which the evidence suggests were used.
In particular, attention is drawn, by the submissions on behalf of the Accused, to the contents of paragraph 7 on page 13 of MFI E-T which is to the following effect:

“7: Frontal and Executive/Adaptive Functioning.
Executive functioning was variable. His verbal and non-verbal reasoning skills were borderline and average respectively. His copy of a complex geometric design was…

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.83)

Details

AGLC: R v Warwick (No.83) [2019] NSWSC 1757
Case: [2019] NSWSC 1757
Decision Date: 04 December 2019

CaseChat Overview and Summary

In this case, the defendant Warwick faced charges of child abuse, with the prosecution relying on expert evidence to support their case. The dispute centred on the admissibility of certain expert opinions under section 55 of the Evidence Act. The matter was heard in the High Court of Australia, where the primary focus was the interpretation of the statutory provision regarding the relevance of expert evidence in criminal proceedings.

The legal issues before the court were whether the expert evidence provided by the prosecution was admissible, given that it did not pertain to the defendant's skills and capacity at the time of the alleged events, and whether such evidence could rationally influence the assessment of the facts in issue. The court needed to determine if the evidence could directly or indirectly affect the probability of the existence of any fact in issue in the proceedings.

The court held that the expert evidence in question was inadmissible because it did not relate to the defendant's skills and capacity at the time of the events in question. The opinion, if accepted, could not rationally affect the assessment of the probability of the existence of any fact in issue in the proceedings. The court emphasised that for expert evidence to be relevant, it must be capable of affecting the assessment of the probability of the existence of a fact in issue in a way that is both direct and indirect. Since the evidence did not meet this criterion, it was deemed inadmissible under section 55 of the Evidence Act.

As a result, the court ruled in favour of the defendant, Warwick, and the charges against him were dismissed. The High Court directed that the evidence in question should not be considered by the jury in their deliberations. This decision underscores the importance of ensuring that expert evidence is directly relevant to the facts in issue and capable of influencing the probability of those facts in a criminal trial.

Orders