R v Warwick (No.88)
[2020] NSWSC 37
•31 January 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.88) [2020] NSWSC 37 Hearing dates: 31 January 2020 Date of orders: 31 January 2020 Decision date: 31 January 2020 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Notice of Motion filed 31 January 2020 dismissed
Catchwords: CRIMINAL PROCEDURE – witnesses – application to recall witness for further cross-examination – whether evidence tendered in re-examination warrants further cross-examination of witness – motion dismissed Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly / I Benson (Accused)
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. Suppression orders in relation to identification of particular witnesses.
EX TEMPORE Judgment (T.9155)
-
By a Notice of Motion filed 31 January 2020, the Accused seeks an order in the following terms:
“That leave be granted to the defence to further cross-examine Detective Russell in relation to the creation of his table, exhibit 714 concerning the Mariti surveillance records and the tender of those documents by the Crown.”
-
The Notice of Motion is supported by an affidavit of Ms Elizabeth Ramsay sworn 31 January 2020, which first refers to an exchange of emails between the solicitor for the Accused and the solicitor for the prosecution, and then refers to a number of other matters.
-
I In paragraph 10 of Ms Ramsay’s affidavit it is said that, as a consequence of the Crown during the course of his re-examination tendering Exh 714, which includes a summary table prepared by Detective Russell, the Accused has been deprived of the opportunity to cross-examine Detective Russell with respect to the contents and accuracy of the table and the completeness of the records relied on in preparing it.
-
Ms Ramsay then asserted that the surveillance records contained in Exh 714 do not reflect the material contained in the table. She says that the table refers to numerous dates, but that the surveillance records said to have been tendered in support of the table are incomplete and do not record every period of surveillance. She notes that the records attached to the table are selective only and that the exhibit does not include all of the records which Detective Russell relied upon in creating the table.
-
With respect, these statements from Ms Ramsay, when considered with the evidence which Detective Russell gave in re-examination, and the specific contents of the exhibit, are self-evident.
-
In cross-examination, putting the subject matter broadly, a question was raised with Det. Russell about his awareness of Mr Knox (who was based in Sydney as the Principal Registrar of the Family Court of Australia in 1984 and 1985) leaving Sydney and going to an undisclosed location because of threats towards him made by Dr Mariti. Detective Russell said that he could not find, or else was unaware of, any evidence which he had to support the actions taken by Mr Knox.
-
As well, Det. Russell was asked about his knowledge of advice that was given to Mr Knox by an agency, advice upon which Mr Knox acted to remove himself from Sydney and go to an undisclosed location. Detective Russell said that he was unaware of any such advice and that he had not seen any document containing such advice.
-
In addressing these issues in re-examination, Det. Russell was asked these questions and gave these answers:
“Q. From a period in 1984 until Mr Mariti left the country in 1985, did the Joint Bomb Task Force conduct surveillance on Mr Mariti?
A. They did.
Q. Have you been through the records that you have, your task force has obtained, being the surveillance records of Mr Mariti in 1984 and 1985?
A. Yes.
...
Q. In relation to those records, in looking at them, did you read the records to ascertain if there was any record or recording made during surveillance of Mr Mariti following Brian Knox?
A. There was no such record.
Q. Did you look for that?
A. Yes, I did.
Q. Or if there was any record of him following any other person?
A. I did look for that, yes.
Q. Were you also asked to consider if there was any record within the surveillance records of Mr Mariti attending a court?
A. Yes.
Q. At the request of the Crown, have you prepared a table of the surveillance records setting out date of surveillance, timing of the observation, a note of the record for a particular date indicating Mr Mariti attending a court; did you do that?
A. Yes, I did.”
-
Detective Russell was then shown the folder, which was tendered and became Exh 714. By reference to the table, he identified that surveillance was undertaken on Mr Mariti for a period which is a little over a year. The surveillance was undertaken on a 24-hours-a-day, seven-days-a-week basis.
-
He identified that over the period of a year there were specific days, or dates, when the records identified Mr Mariti attending a court or court registry. The table identifies the time and the court or court registry.
-
Behind the table in the folder is a copy of the surveillance sheets for those identified dates when Mr Mariti attended a court or a court registry. Clearly the exhibit does not include all surveillance records. It was not said by Det. Russell that it did. What was said by him in evidence was that had he been through all of the records and that these constituted a selected group of those documents, namely, those containing a reference to Mr Mariti attending a court or court building or court registry.
-
The affidavit of Ms Ramsay does not draw to attention any discrepancy between the notations made in the table as to the days upon which a court registry was visited by Mr Mariti, and the underlying documents. I do not accept, having regard to the purpose for which the exhibit was prepared and the basis upon which it was tendered as identified by the evidence of Det. Russell, that the exhibit purports to be all surveillance records available to the Joint Bomb Task Force and the current investigators of all occasions upon which Mr Mariti was the subject of surveillance.
-
The exhibit is a selective exhibit. It is intended to identify only specific dates and the purpose for that is stated in evidence. The weight to be given to this document and what inferences, if any, are to be drawn from it in the course of contested issues in the trial, is a matter for submission if thought relevant during submissions by the Crown and for the Accused.
-
If it is only an incomplete record, and the inferences contended for by the Crown are not justified by an incomplete record, then that is a submission which can be made by the Accused in due course. If the Court is persuaded of that submission, a finding to that end can be made.
-
In addition to the availability of such submission, if in fact there are surveillance records which exist which prove the contrary of the facts stated by Det. Russell (the stated facts being that there was no record made during surveillance of Mr Mariti which recorded that he followed Mr Knox), then such record can be tendered if the Accused wishes as part of his case; or, alternatively, a request can be made of the Crown to tender such record, if it exists.
-
The basis articulated in Ms Ramsay's affidavit seems to proceed without regard to the evidence that was given in re-examination by Detective Russell and the description given to, and the very nature of, the exhibit itself. It was only ever tendered as a selective exhibit and it either proves, or else it does not, the facts which Det. Russell asserts. That is a matter which is properly to be dealt with by submission and does not suggest or require the recalling of Detective Russell to give any further evidence on the subject, either in cross‑examination or re-examination.
-
For these reasons I dismiss the Motion.
Orders
-
I make the following orders:
Notice of Motion filed 31 January 2020 is dismissed.
********
Decision last updated: 06 February 2020
2