R v Warwick (No.90) - [2020] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.90) [2020] NSWSC 70
Hearing dates: 10 February 2020
Date of orders: 10 February 2020
Decision date: 10 February 2020
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Tender of the report of Dr Jools dated 8 February 2020 is rejected.

Catchwords: EVIDENCE – expert evidence – admissibility of expert report - whether inference can be drawn from expert report as to capacity of Accused – no relevant context in report to support inference – inference not within requested remit of expert report – tender of expert report rejected.
Legislation Cited: Evidence Act 1995
Cases Cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
R v Warwick (No.83) [2019] NSWSC 1757
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.9244)

Proposed Exhibit

The Accused has sought to tender the report of Dr Penelope Jools, dated 8 February 2020, as an expert report. Leave is required to call the expert evidence because the report of Dr Jools was served only today, which is outside the time limited by order of this Court for the service of expert reports. As will become apparent, it is unnecessary to consider whether the late service of this report is a relevant cause for the decision which the Court has reached.
The Crown objects to the admission of the report and the grant of leave to adduce the expert evidence of Dr Jools, principally upon the ground of relevance. A little background is necessary.

Factual Background

On 4 December 2019, the accused sought to tender the report of Dr Susan Pulman, dated 30 March 2016. Dr Pulman is a forensic psychologist and clinical neuropsychologist.
After hearing argument, I rejected the tender of the report for the reasons set out in R v Warwick (No.83) [2019] NSWSC 1757.
On 5 February 2020, the lawyers for the Accused wrote to Dr Jools, seeking expert comment with respect to two identified matters, having regard to the contents of the report of Dr Pulman (the tender of which had been rejected). Dr Jools was asked to comment in relation to the following matters:

“(a) whether IQ remains generally stable or not throughout life;
(b) whether the IQ of Leonard Warwick as reported by Dr Pulman is consistent or not with his life experience, including his career throughout life."

In order to enable Dr Jools to provide an opinion, the letter of 5 February 2020 enclosed a copy of the Expert Code of Conduct and the report of Dr…

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.90)

Details

AGLC: R v Warwick (No.90) [2020] NSWSC 70
Case: [2020] NSWSC 70
Decision Date: 10 February 2020

CaseChat Overview and Summary

The case of R v Warwick (No.90) involved the accused, Warwick, who was on trial for criminal offences. The primary issue before the court was the admissibility of an expert report that was tendered in the proceedings. The court had to determine whether an inference regarding the accused's capacity could be drawn from the expert report, and whether such an inference fell within the scope of the expert's remit. The case ultimately centred on the proper interpretation and limitations of expert evidence in criminal trials.

The court considered whether the expert report provided sufficient context to support an inference about the accused's capacity. It was essential to ascertain whether the inference drawn by the prosecution was within the boundaries of the expert's requested remit. The court had to carefully examine the content of the expert report and ensure that any inference made was both relevant and appropriately constrained by the scope of the expert's instructions.

In reaching its decision, the court held that the expert report did not provide sufficient context to support the inference sought by the prosecution. The court found that the inference was not within the remit of the expert report as requested by the parties. Consequently, the court rejected the tender of the expert report, emphasising the need for expert evidence to remain within the confines of its specified scope and to be contextually relevant to the issues at hand.

The court's ruling underscored the importance of maintaining the integrity of expert evidence in legal proceedings. By rejecting the tendered report, the court reinforced the principle that expert opinions must be grounded in the specific context provided and must not exceed the parameters set by the parties. The final orders of the court mandated that the rejected expert report could not be utilised as evidence in the proceedings against Warwick.

Orders