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Supreme Court 9 August 2018

R v Warwick (No.33)

[2018] NSWSC 1219

Homicide
EVIDENCE CRIMINAL PROCEEDINGS OPINION EVIDENCE HEARSAY BUSINESS RECORDS EXCEPTION EVIDENCE ACT 1995, S 69

Citation: R v Warwick (No.33) [2018] NSWSC 1219
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge(s): Garling J

Background

This decision arises from an ongoing criminal trial in which the accused faced charges relating to a series of alleged criminal events. The Crown's case included the proposition that events in Family Court proceedings between the accused and his former wife, conducted between 1979 and 1986, provided a motive for the alleged conduct.

To establish that motive, the Crown sought to call the Honourable Justice Garry Watts, a current judge of the Family Court of Australia who had previously acted as a solicitor for the former wife during part of those Family Court proceedings. The Crown also tendered two volumes of documents constituting a copy of the original Family Court file.

The accused objected on multiple grounds to both the Family Court file and to Justice Watts giving opinion evidence about its contents. Garling J overruled all objections and provided these reasons.

Legal Issues

  • Whether Justice Watts could give opinion evidence without having adopted the Expert Witness Code of Conduct under Schedule 7 of the UCPR or Part 75 r 3J of the Supreme Court Rules
  • Whether the Family Court file was admissible as a business record under section 69 of the Evidence Act 1995
  • Whether documents such as affidavits, prepared for the purpose of the Family Court proceedings, were excluded from the business records exception under section 69(3)
  • Whether the file was admissible for a non-hearsay purpose under section 60 of the Evidence Act
  • Whether use of affidavits sworn by persons other than the accused should be limited under section 136
  • Whether Family Court judgments were excluded by section 91 of the Evidence Act

Decision

Issue 1: Opinion evidence and the Expert Witness Code of Conduct

Justice Watts was well qualified by his training, experience, and current judicial office as an expert in family law and Family Court practice. (at [9]-[11]) The accused argued that non-compliance with the Expert Witness Code of Conduct rendered his opinion evidence inadmissible. Garling J rejected this, applying the Court of Criminal Appeal's decisions in Wood v The Queen and Chen v R, which together establish that failure to comply with the Code does not mandate exclusion of opinion evidence in criminal proceedings. (at [38]-[43]) The Code arises from rules made under section 124 of the Supreme Court Act, which does not empower the making of rules that override the Evidence Act's provisions on admissibility of expert opinion. (at [41]-[42]) The opinion evidence was admitted under section 79(1) of the Evidence Act, the witness's evidence being wholly or substantially based on his specialised knowledge of family law and Family Court procedure. (at [46]-[49])

Issue 2: The Family Court file as a business record

The Crown argued the file was admissible under the business records exception in section 69. The Family Court of Australia is "an activity carried on by the Crown in any of its capacities," satisfying the definition of "business" in the Evidence Act Dictionary. (at [55]-[58]) Accordingly, the file and its contents fell within section 69. (at [59]) However, section 69(3)(a) excludes representations prepared or obtained for the purpose of conducting legal proceedings. Affidavits filed by the parties fell within that carve-out, as they were self-serving documents prepared for the Family Court proceedings. (at [62]-[63]) Formal court documents such as pleadings, orders, and other material prepared by the Court itself did not appear to fall within that exclusion. (at [68])

Issue 3: Non-hearsay purpose under section 60

Garling J held the entire file was independently admissible under section 60 of the Evidence Act. The Crown tendered the file not to prove the truth of representations within it, but to establish what occurred in the Family Court proceedings as the foundation for its motive case. (at [69]-[70]) The file also formed part of the material provided to Justice Watts as the basis for his opinion and factual evidence. (at [71]) Section 60(3) limits the operation of section 60 for admissions by the accused, but no material in the file constituted such an admission. (at [72]-[73]) Section 60 therefore permitted admission of the whole file. (at [74])

Issue 4: Section 136 limitation and section 91 exclusion

On the accused's application, and without opposition from the Crown, Garling J made an order under section 136 limiting the use of affidavits sworn by persons other than the accused. Those affidavits were admitted only for non-hearsay purposes and could not be used as proof of the truth of their contents. (at [75]-[77]) On section 91, Garling J held that the provision does not prohibit admission of judicial decisions entirely. It prohibits their use to prove facts in issue, but section 91(2) contemplates admission for other purposes. The Family Court judgments were admissible to prove what was said by the presiding judges, the timing and basis for orders, and the reasoning behind them. (at [80]-[81])

Orders Made

  • The two-volume copy of the Family Court file was admitted into evidence (with the limitation that affidavits sworn by persons other than the accused are not to be used as proof of the truth of the facts stated in those affidavits).
  • Evidence of Justice Garry Watts, including his opinion evidence, was permitted to be led.

Key Takeaways

  • Non-compliance with the Expert Witness Code of Conduct does not automatically render opinion evidence inadmissible in criminal proceedings in the NSW Supreme Court. Following Wood v The Queen [2012] NSWCCA 21 and Chen v R [2018] NSWCCA 106, the Code does not override the admissibility framework in the Evidence Act 1995. (at [38]-[43])

  • Court records maintained by the Family Court of Australia qualify as "business records" within the Evidence Act 1995 definition, because the Family Court is an activity carried on by the Crown. This is so regardless of any discomfort with describing a superior court's operations as a "business." (at [55]-[58])

  • Under section 69(3)(a) of the Evidence Act, representations prepared for the purpose of conducting legal proceedings, including affidavits filed by parties, are excluded from the business records exception. Documents prepared by the court itself, such as formal orders and pleadings, do not appear to fall within the same exclusion. (at [62]-[63], [68])

  • A file containing hearsay representations may nonetheless be admitted in full under section 60 of the Evidence Act where the tender is for a non-hearsay purpose, such as establishing background facts or alleged motive, provided no admission by the accused within the meaning of section 60(3) is involved. (at [69]-[74])

  • Section 91 of the Evidence Act restricts the use of judicial decisions to prove facts in issue in other proceedings, but does not prevent admission of those decisions as evidence of what a judge said, when, and on what basis orders were made. (at [80]-[81])

Legislation and Cases Referenced

Legislation
- Evidence Act 1995
- Family Law Act 1975
- Supreme Court Act 1970
- Supreme Court Rules 1970
- Uniform Civil Procedure (Amendment No 82) Rule 2016
- Uniform Civil Procedure Rules 2005

Cases
- Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No.4) [2008] FCA 1038; (2008) 170 FCR 9
- Averkin v Insurance Australia Ltd [2016] NSWCA 122; (2016) 92 NSWLR 68
- Chen v R [2018] NSWCCA 106
- Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
- Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67
- R v Adams (No 5) [2016] NSWSC 1563
- R v Warwick (No.24) [2018] NSWSC 691
- Vitali v Stachnik [2001] NSWSC 303
- Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581