R v Warwick (No.85)

[2019] NSWSC 1909

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.85) [2019] NSWSC 1909
Hearing dates:	17 December 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1) The Crown's application for leave to reopen its case to call Det. Russell, Det. Heffernan and Ms Opas for further cross‑examination is granted. (2) Pursuant to s 192 of the Evidence Act 1995, any further cross‑examination be, unless further leave be granted, limited as follows: (a) Ms Opas: Facts matters and circumstances contained in Exh TBB and Exh TBC, and matters arising therefrom; (b) Detectives Russell and Heffernan: Facts, matters and circumstances contained in and arising from their duty books produced since October 2019, as those facts, matters and circumstances may relate to the adequacy of the investigations undertaken since 2013. (3) The application for adjournment of the whole trial until 2020 is refused. (4)   The Court directs that Ms Opas be recalled to give evidence on 18 December 2019, and that Detectives Russell and Heffernan be recalled in January 2020.
Catchwords:	CRIMINAL PROCEDURE – Adjournment – application for adjournment to complete reading of documents produced on subpoena – reasons not sufficient to warrant an adjournment EVIDENCE – Course of evidence – Re-opening case – re-calling witnesses – agreement between the parties for the Crown to re-open its case – cross examination of Crown witnesses to be limited – s192 of the Evidence Act 1995
Legislation Cited:	Evidence Act 1995
Cases Cited:	Prasad v R [1994] HCA 2; (1994) 68 ALJR 194 Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407 R v Baden-Clay (2016) 258 CLR 308 Peacock v R (1911) 13 CLR 619
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 (Accused)
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. Suppression orders in relation to identification of particular witnesses.

EX TEMPORE Judgment (T.8663)

1. Mr Conolly, the lawyer for the Accused, makes application for an adjournment of the balance of the trial until 2020. The Crown, in part, opposes the application. The Crown submitted that conditions ought to be imposed on any grant of an adjournment and consequential orders.

Context of the Application

2. The context of this application is to be found in some recent events and the stage which the trial has reached. The Crown's case commenced in evidence in July 2018. Included in their case has been evidence from the following three witnesses: Detectives Russell and Heffernan (respectively the Officer in Charge and Second in Command of the investigation, which commenced in 2013) and also Ms Kristin Opas, the widow of the late Justice David Opas who was murdered on 23 June 1980. Detective Heffernan previously gave evidence in the trial on 30 and 31 August 2018 and on 3 and 4 September 2018. Detective Russell gave evidence on 17, 21, 22, 23, 24 and 28 October 2019. Ms Opas gave evidence on 2 September 2019, which was the one hundred and twenty‑second day of the trial.

3. The Crown closed its case on the one hundred and forty-fourth day of the trial, 31 October 2019. After the determination, adversely to the Accused, of a no case to answer submission and an unsuccessful application for a Prasad direction: see Prasad v R [1994] HCA 2; (1994) 68 ALJR 194; Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407, the Accused commenced calling witnesses in answer to the Crown case on 27 November 2019.

4. On 24 October 2019, the lawyers for the Accused issued a subpoena addressed to the Commissioner of Police for the New South Wales Police Force. The subpoena required production of the duty books and notebooks of each of the detectives, including Detectives Russell and Heffernan, involved in the re-investigation of the offences the subject of the current Indictment. As well, documents were sought which related to Ms Opas and a Mr Gabriel Carr. That subpoena was first returnable on 29 October 2019, and documents (except for one duty book of Detective Dowson, which was produced a little later) have been produced pursuant to it in the period up to 11 November 2019.

5. The evidence before the Court on this Motion is that the total production by the Commissioner exceeds 10,000 separate date entries, generally with one date per page.

Re-opening of the Crown Case

6. By a Motion filed after the close of the Crown case, the Accused sought orders that the Crown recall each of the three witnesses, whom I have named in [2] above, for further cross-examination.

7. Without the need for a determination of that Motion on a contested footing, the Crown has agreed with the lawyers for the Accused that, subject to it being granted leave to re-open its case, it is prepared to call those three witnesses. The Crown seeks that any further cross‑examination of each of those witnesses be limited in a way which can broadly be described as being by reference to the documents which have been produced in answer to the subpoena issued on 24 October 2019.

8. The stage has now been reached in this trial where there is only one further witness left to be called by the Accused. That witness is a forensic pathologist, Professor Duflou, who is to give evidence at 10am tomorrow, Wednesday, 18 December 2019. As I understand it, his evidence is likely to be relatively confined and perhaps likely to occupy no more than an hour.

9. In answer to the Crown case, there may well be, in addition to the calling of that witness, the tendering of documents on behalf of the Accused. At the moment, it is quite unclear what the extent of that tender will be.

Adjournment Application

10. As outlined earlier, an application has been made that after the taking of Professor Duflou's evidence there be an adjournment of the trial until 2020, at which time the three named witnesses can be called to be further cross‑examined.

Adjournment Application – The Evidence

11. As I understand it, and putting it simply, the application for the adjournment is based upon the proposition that those representing the Accused have not had sufficient time to complete their reading of the duty books produced in answer to the subpoena issued on 24 October 2019.

12. I earlier mentioned that the subpoena sought the production of documents relating to Ms Opas and Mr Carr. 74 pages of documents have been produced relating to those individuals. Those relating to Mr Gabriel Carr have been marked as Exh TBB on this Motion, and those relating to Ms Kristin Opas have been marked Exh TBC on this Motion.

13. For the purpose of understanding the submissions and for the determination of this Motion, I have carefully read those documents. The documents can fairly be described as consisting of a card index and running sheets of enquiries made by police, including records of interview and statements taken surrounding the personal life and finances of the late Justice Opas and his wife. The documents seem all to have been compiled in the course of 1980 and largely within three months of the murder of Justice Opas.

14. It is my assessment, from a careful reading of those documents, that they are easy to read and appear, on their face and with their references, to be able to be easily understood. Some of the information contained in those documents is, from its appearance and its source, overwhelmingly likely to be accurate: for example, Justice Opas’ bank manager gives details of the state of the late Judge's bank account. Other information which is recorded is of a more dubious nature, consisting of rumours and innuendo.

15. The conclusions expressed by those investigating these matters in 1980 was that there was nothing that could be identified by those recorded investigations which suggested that the person (or persons) responsible for the murder of Justice Opas was to be identified through his private life and his family affairs. Rather, the investigators concluded that the person responsible for the murder of Justice Opas was someone connected with his work as a Judge of the Family Court.

16. Detective Russell, when he was cross-examined, was asked about the approach of the detectives when undertaking the more recent re-examination in 2013 into the murder of Justice Opas. In particular, he was cross-examined about whether the police had undertaken, since the 1980s, any enquiries or investigations into a motive for the murder of Justice Opas that had nothing to do with his service as a Family Court Judge. He gave this evidence:

“Q.   Did your investigation pursue any aspect of that other motive that had been pursued by the original police?

A.    No.

Q.    Why not?

A.    Because I am satisfied that the investigations at that time - and it is clear in this document that it is said in regard to motive, the private life of the deceased and his family were fully investigated and the police failed to find any evidence to imply that his death may have been attributed to this line of enquiry.”

17. Detective Russell said that he was satisfied that the previous police investigation from the 1980s was a thorough investigation. Consequently, his contemporary investigation did not take any steps to pursue any line of enquiry other than that Justice Opas had been shot for reasons connected with his service as a Judge of the Family Court.

18. It is necessary, as part of a criminal trial which relies upon circumstantial evidence, for the Crown to exclude all reasonable hypotheses consistent with the innocence of the Accused: see, for example, Peacock v R (1911) 13 CLR 619 at 634; R v Baden-Clay (2016) 258 CLR 308 at [46]-[48].

19. It is a relevant issue in this trial whether the person responsible for the murder of Justice Opas undertook that crime in connection with the Judge’s discharge of his duties on the Family Court (as the Crown contends), or whether a reasonable hypothesis exists that a person entirely unconnected with the Family Court was responsible for the murder. The documents set out in Exh TBB and Exh TBC were not available to the lawyers for the Accused at the time Ms Opas was first cross‑examined. It is on this basis that the Crown accepts that she should be recalled for cross‑examination, subject to a limit pursuant to s 192 of the Evidence Act 1995, that any such questions be limited to the material contained in the newly identified documents.

Submissions for the Accused

20. In seeking an order of the Court that the Crown have leave to reopen its case and to re-call Ms Opas, Mr Conolly submitted that he wishe to cross-examine Ms Opas. This cross-examination is sought with a view to asking questions designed to explore, and perhaps to ultimately put to Ms Opas, that a person or persons other than the Accused, shot or else caused the shooting of the late Justice Opas.

21. Mr Conolly expects that the issue of whether Ms Opas is such a person would be explored in cross-examination. He informed the Court that he presently anticipates that it will be put to Ms Opas that she caused her husband to be shot.

22. If that is a line of cross-examination available within the constraints upon cross-examination in s 41 of the Evidence Act, then, having regard to its relevance to the proceedings, it is a matter which would justify the recall of Ms Opas. I express no view on whether the evidence before the Court, either at the moment or as it may be in the future, would justify such propositions being put to Ms Opas.

23. The issue which remains, so far as the recall of Ms Opas is concerned, is when that should occur. The two alternatives are either on Wednesday, 18 December 2019, after the evidence of Professor Duflou, or else in 2020 as the application for an adjournment of this trial seeks. Mr Conolly, for the Accused, submitted that Ms Opas should not be called before 2020 because he wishes to be in a position to have read all of the duty books produced in answer to the subpoena addressed to the Commissioner for Police.

Discernment

24. To the extent that those duty books have been read, I have not been taken to any entry in those duty books which refers to any investigation being undertaken by detectives in recent times about the issue of the personal lives of the late Justice Opas and Ms Opas, their financial position or anything which suggested that the person responsible for the murder of the late Justice Opas was not connected with his Family Court duties. This is despite a number of the duty books being tendered on this Motion,

25. Having regard to the evidence given by Det. Russell, to which I have earlier referred, and noting that some duty books remain to be read, I am not convinced that there is any likelihood of any further entry being identified in those duty books which would in any way relate to the identified topic for the further cross‑examination of Ms Opas.

26. In considering an application for an adjournment with respect to the taking of Ms Opas’ further cross-examination, the Court needs to keep in mind a range of factors. These include, but are not limited to the need for a trial to proceed in an orderly and as expeditious a fashion as is reasonably possible; the need for witnesses to be able to give their evidence, free of a continuing obligation or potential obligation to be recalled to give evidence; the need for finality in the way in which evidence is taken in criminal trials so that the totality of the evidence in the Crown case is clear; whether good cause has been shown for the adjournment; and, finally, the interests of justice which compel the Court to proceed with a trial in a way which does all that is reasonable to bring it to a conclusion within a reasonable time.

27. In my view, nothing of substance has been put which would justify an adjournment of the further cross-examination of Ms Opas for a period of a further five weeks or so. The mere fact that police duty books have not been read, in circumstances where it is highly unlikely for there to be any entry directly relating to the substance of the facts as they occurred in the 1980s, is simply no reason to adjourn the taking of any further cross-examination of Ms Opas. There is no impediment to the matters of substance which the Accused wishes to explore arising out of the documents in Exh TBB and Exh TBC, to defer that cross-examination by reference to any further documents. The subject matter is not so complex as to require any adjournment to enable the Accused to be properly prepared to conduct such cross-examination. There appears no reason that the witness could not conclude her evidence this week.

28. I am prepared to grant leave to the Crown to re-open its case to call Ms Opas for further cross-examination subject to that further cross-examination being limited to the facts, matters and circumstances contained in Exh TBB and Exh TBC and matters arising directly therefrom.

29. I direct that any further such cross-examination commence at the conclusion of the evidence of Professor Duflou on Wednesday, 18 December 2019, and that it take place by audiovisual link, just as the original evidence of Ms Opas took place, because she lives interstate.

30. I turn to consider the application to recall Det. Russell and Det. Heffernan for further cross-examination.

31. As I have earlier noted, the Crown does not oppose their recall. I have also been informed that the Crown intends to ask questions of Det. Russell, in a case in reply, to matters advanced by the witnesses called for the Accused.

32. The basis for the application for the Crown to re-open their case to recall these witnesses is the production of the duty books and other documents in answer to the subpoena of 24 October 2019. I regard that as being a proper basis for the grant of leave to the Crown to re-open its case and to recall those witnesses.

33. In my view, because Detectives Russell and Heffernan have both been cross‑examined previously about a wide range of facts and matters and a wide range of steps that they have taken in the course of their investigations, it is appropriate to limit the areas for further cross-examination, pursuant to s 192 of the Evidence Act. Namely, any further cross-examination is to be limited, subject to a grant of further leave, to the content of the duty books provided to the Court, pursuant to a subpoena dated 24 October 2019, and as may relate to the adequacy of the investigation undertaken by Det. Russell and/or Det. Heffernan in the period from 2013 until the start of the trial.

34. It is obvious that it would be necessary, before further cross-examination of those two witnesses can occur, for the Accused's lawyers have the opportunity of reading the material which has been produced. The unchallenged evidence before me is that that task is not yet complete and it is unlikely to be completed this year.

35. The balance of the two days in the trial will be occupied by the evidence of Professor Duflou and the further cross-examination of Ms Opas, and the remaining available time for the conduct of the trial in 2019 is quite short. Thus, there is no prejudice to the Crown caused by any delay of the two detectives being further cross-examined. It seems to me that the interests of justice to all favour the grant of an adjournment to deal with their evidence in 2020.

36. The formal orders will be made to reflect the conclusions which I have expressed.

Orders

37. I make the following orders:

1. The Crown's application for leave to reopen its case to call Det. Russell, Det. Heffernan and Ms Opas for further cross‑examination is granted.

2. Pursuant to s 192 of the Evidence Act 1995, any further cross‑examination be, unless further leave be granted, limited as follows:

1. Ms Opas: Facts matters and circumstances contained in Exh TBB and Exh TBC, and matters arising therefrom;

2. Detectives Russell and Heffernan: Facts, matters and circumstances contained in and arising from their duty books produced since October 2019, as those facts, matters and circumstances may relate to the adequacy of the investigations undertaken since 2013.

3. The application for adjournment of the whole trial until 2020 is refused.

4. The Court directs that Ms Opas be recalled to give evidence on 18 December 2019, and that Detectives Russell and Heffernan be recalled in January 2020.

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Decision last updated: 04 February 2020