R v Warwick (No.88) - [2020] NSWSC 37

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:
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. 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…

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.88)

Details

AGLC: R v Warwick (No.88) [2020] NSWSC 37
Case: [2020] NSWSC 37
Decision Date: 31 January 2020

CaseChat Overview and Summary

The case of R v Warwick (No.88) was heard by the Court of Criminal Appeal. The respondent, Warwick, was convicted of various criminal offences. The applicant sought to recall a witness for further cross-examination. The witness had already been cross-examined by the applicant and re-examined by the prosecution. The applicant sought to cross-examine the witness again on the basis of new evidence tendered in the witness's re-examination. The court had to decide whether the new evidence warranted further cross-examination of the witness.

The court considered whether the new evidence provided by the witness in their re-examination was significant enough to warrant further cross-examination. The court noted that the witness's re-examination evidence was not unexpected or significantly different from their earlier testimony. The court also considered the timing of the application and the potential prejudice to the respondent if the application was granted. The court held that the new evidence did not warrant further cross-examination of the witness.

The court dismissed the application to recall the witness for further cross-examination. The court found that the new evidence provided by the witness in their re-examination was not significant enough to warrant further cross-examination. The court also considered the potential prejudice to the respondent if the application was granted. The court held that the application was an abuse of process and dismissed it. The court did not make any further orders.

Orders