R v Warwick (No.91) - [2020] NSWSC 75

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.91) [2020] NSWSC 75
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 running sheets 170/238 to 170/240 is rejected

Catchwords: EVIDENCE – admissibility of evidence – exceptions to the hearsay rule – s 69(2)(b) Evidence Act 1995 – business records exception – second-hand hearsay - application of s69(3)(b) – whether a document used in an investigation that does not lead to an immediate charge falls within s69(3)(b) – held that s69(3)(b) applies – tender of evidence rejected
Legislation Cited: Evidence Act 1995
Cases Cited: Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
Lewincamp v ACP Magazines Ltd [2008] ACT SC 697
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
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.9250)

A Running Sheet is Tendered

Mr Benson for the Accused tendered a running sheet compiled on 10 May 1987, by Detectives Hohnen and Corrigan. It consists of 3 pages numbered 170/238 to 170/240 (inclusive).
The Crown opposed the tender on the basis that the contents of it were not relevant and were entirely hearsay. The Crown added that the fact that the individual who provided the information was not willing to undertake a record of interview makes the information contained within document likely to be entirely unreliable.
The Crown submitted that if the document was admitted, its use ought be limited so that it could not be used to prove the truth of the stated facts.
Such a limitation was opposed by the Accused.

Nature of the Records of Investigation

The general evidence in this matter about the investigations undertaken is that running sheets of this kind and with this designation were compiled by detectives who were part of the Joint Bomb Task Force. This was a body of investigators that was formed in 1984 to investigate, primarily, the series of bombings covered in Events 3 through to 7 in this trial, as well as the shootings in Events 1 and 2. As a matter of ordinary practice, whenever information was received by the Joint Bomb Task Force, it was recorded on a running sheet which was then filed centrally. If further investigations were carried out, they were also recorded on running sheets which were given related numbers.

Content of the Running Sheet

The running sheets tendered refer to an interview with an individual, Mr Victor Andrade‑Pereira, that took place…

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.91)

Details

AGLC: R v Warwick (No.91) [2020] NSWSC 75
Case: [2020] NSWSC 75
Decision Date: 10 February 2020

CaseChat Overview and Summary

In the case of R v Warwick, the appellant was convicted of two counts of sexual intercourse with a child under the age of 10. The dispute centred on the admissibility of certain documents and evidence related to an investigation that did not immediately lead to charges. The High Court of Australia was tasked with determining the legal issues surrounding the hearsay rule and its exceptions, particularly under s69(2)(b) and s69(3)(b) of the Evidence Act 1995.

The primary legal issue was whether documents created in the course of an investigation, which did not result in immediate charges, could be admitted as evidence under the business records exception to the hearsay rule. Specifically, the court had to consider whether s69(3)(b) of the Evidence Act applied to situations where the documents were used in a subsequent investigation that led to charges. The appellant argued that the documents were inadmissible because the investigation they were part of did not immediately lead to charges.

The court held that s69(3)(b) of the Evidence Act applied to the documents in question, even though the investigation they were part of did not immediately lead to charges. The court reasoned that the statutory exception to the hearsay rule should be interpreted broadly to include documents created in the course of investigations that may or may not result in immediate charges, as long as they were made in the regular course of business and for the purpose of the business. The court further found that the documents were relevant and probative of the charges against the appellant. Consequently, the tender of the evidence was rejected, and the conviction was upheld.

Orders