Citation: R v Warwick (No.35) [2018] NSWSC 1263
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge(s): Garling J
Background
The accused stood trial in proceedings arising from a 1985 bombing of a Kingdom Hall (a place of worship used by Jehovah's Witnesses) at Casula. A witness, a fellow firefighter who had served alongside the accused in the same platoon at Liverpool Fire Station, was giving evidence in chief for the Crown.
The witness had been studying to become a Jehovah's Witness at the time of the bombing, though he had not yet been baptised. His evidence concerned conversations he had with the accused in the weeks or months before the bombing, including an alleged remark by the accused to the effect that "your mob should be blown up" or "your mob needs a bomb put under them."
The defence objected to the witness's answer on several grounds, including relevance, unfair prejudice, and alleged inconsistency with earlier accounts given by the witness in 1985. The Crown pressed to have the evidence admitted and to lead further evidence on the same subject matter.
Legal Issues
- Whether the witness's evidence about the accused's attitude towards the Jehovah's Witness faith was relevant to an issue in the proceedings
- Whether any contextual factors (such as the allegedly convivial, workplace "stirring" nature of the remarks) rendered the evidence incapable of carrying weight
- Whether the use of the words "violent" and "abusive" in the witness's answer went beyond his earlier statements so as to render that answer inadmissible
- Whether the probative value of the evidence substantially outweighed any unfair prejudice to the accused under section 137 of the Evidence Act 1995
- Whether the impugned answer should be struck out pending further examination in chief
Decision
Issue 1: Relevance
Garling J held that evidence of an accused person's attitude towards a group that was targeted or became victims of an alleged crime can be relevant to whether the accused committed that crime (at [13]). Applying the threshold test in IMM v The Queen [2016] HCA 14, his Honour found the evidence was relevant because the alleged remark was made within weeks or months of the bombing and disclosed a hostile attitude towards members of the Jehovah's Witness faith (at [11]-[12]). The evidence was therefore prima facie admissible under section 56 of the Evidence Act 1995 (at [14]).
Issue 2: Weight and Context
Garling J rejected the submission that the conversational context, described as workmates "stirring" each other, meant the evidence was incapable of carrying any weight. His Honour found that the context and tone of the remarks were matters going to weight rather than admissibility, and that the ultimate determination of weight would depend on further evidence adduced in chief, cross-examination, or otherwise (at [15]-[17]).
Issue 3: Consistency with Earlier Accounts
The defence argued that the witness's use of the words "violent" and "abusive" in his answer represented a departure from his 1985 Record of Interview and later statement. Garling J found those words were broadly descriptive of interactions that the witness was otherwise understood to be giving evidence about, and did not represent evidence of a different kind so as to render the answer inadmissible (at [18]-[19]).
Issue 4: Probative Value vs Unfair Prejudice
Garling J was satisfied that the probative value of the evidence substantially outweighed any unfair prejudice to the accused under section 137 of the Evidence Act 1995. His Honour noted that material was available in the Crown brief to enable thorough testing of the witness's account, and he could identify no unfair prejudice (at [20]-[22]).
Issue 5: The Impugned Answer
Rather than striking out the specific answer at that stage, Garling J left open the possibility of revisiting its admissibility once the Crown had completed its examination on the subject matter. The answer was allowed to stand, subject to review if the defence continued to press for its exclusion (at [23]-[24]).
Orders Made
- The witness's impugned answer was not struck out.
- The Crown was permitted to lead evidence on the subject matters described in the course of submissions.
Key Takeaways
- Evidence of an accused person's attitude towards a group targeted by an alleged offence can be relevant to whether the accused committed the offence, even if that attitude is not by itself sufficient to establish guilt (at [13]).
- Where a witness's oral evidence is more descriptive than their earlier written accounts, the difference will not necessarily render the evidence inadmissible if the substance remains broadly consistent with what was previously supplied (at [18]-[19]).
- Under section 137 of the Evidence Act 1995, the availability of material in the prosecution brief that permits thorough cross-examination of a witness is a relevant consideration in assessing whether unfair prejudice results from admission of the evidence (at [21]-[22]).
- Contextual factors affecting the weight of alleged admissions or statements, such as the convivial or jocular nature of a workplace exchange, are matters of weight rather than admissibility (at [15]-[16]).
- A trial judge may decline to strike out an impugned answer in examination in chief and reserve the question of its final admissibility until the full evidentiary context has been developed through further questioning (at [23]-[24]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300