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)

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

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…

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.85)

Details

AGLC: R v Warwick (No.85) [2019] NSWSC 1909
Case: [2019] NSWSC 1909
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case before the court involved the defendant, Warwick, who was facing criminal charges. The application before the court was for an adjournment to allow Warwick to complete reading the documents that had been produced on subpoena. The matter was heard in the higher courts of the state. The legal issues that the court had to decide included whether the reasons provided by Warwick were sufficient to warrant an adjournment and whether the course of evidence should be altered to allow the re-opening of the case and the re-calling of witnesses.

The court considered the reasons provided by Warwick for the adjournment and found them to be insufficient to warrant a delay in the proceedings. The court held that the defendant had had ample opportunity to review the documents and that any difficulties in doing so were due to his own failings. The court also noted that any prejudice caused by the delay would be to the complainant and the public interest in the timely resolution of criminal cases. Regarding the course of evidence, the court found that the parties had agreed to allow the Crown to re-open its case and re-call witnesses. However, the court limited the cross-examination of the Crown witnesses to avoid unnecessary delay and to ensure that the trial proceeded in a fair and efficient manner.

The court dismissed the application for an adjournment to complete reading the documents produced on subpoena. The court also made orders regarding the re-opening of the case and the re-calling of witnesses, including limiting the cross-examination of the Crown witnesses. The court's decision was based on the need to balance the rights of the defendant with the public interest in the timely resolution of criminal cases and the need to ensure a fair trial.

Orders