Citation: R v Warwick (No.40) [2018] NSWSC 1283
Court: Supreme Court of New South Wales
Date: 16 August 2018
Judge(s): Garling J
Background
This decision arose during a criminal trial concerning the bombing of a Kingdom Hall at Casula on 21 July 1985. The Crown sought to tender a photogrammetry plan of the crime scene, prepared by the NSW Police Force's Photogrammetry Unit at the direction of the head of the Ballistics Unit.
The witness giving evidence, Mr Sheather, had been the officer in charge of the Kingdom Hall site at the time of the investigation. He had arranged for the Photogrammetry Unit to attend and document the scene, though he did not personally prepare the plan.
The accused objected to the tender of the plan on the basis that the officer who actually drew it, Detective R N Adams, had not been called to give evidence, and that Mr Sheather lacked the capacity to properly identify it.
Legal Issues
- Whether the photogrammetry plan of the Kingdom Hall crime scene was admissible in evidence
- Whether Mr Sheather, as the supervising officer rather than the plan's author, was capable of adequately identifying the document
- Whether the plan was relevant both as evidence of the consequences of the bombing and as a response to the accused's attack on the adequacy of the police investigation
Decision
Relevance of the Plan
Garling J found the plan relevant on two bases. First, its content was relevant as evidence of the physical consequences of the bombing, including the location of particular features at the scene (at [6]). Second, the Crown tendered it to establish the steps taken in and the adequacy of the police investigation, in response to the accused's challenge to the conduct of that investigation (at [5]).
Capacity of Mr Sheather to Identify the Plan
The accused submitted that Mr Sheather could not properly identify the plan because he did not prepare it and lacked detailed memory of how it was prepared. Garling J rejected this submission. His Honour noted that Mr Sheather's December 2015 statement recorded that he had been shown the plan and had noted the material on its label, and that this was sufficient to demonstrate an ability to identify the document (at [9]). The accused did not seek to cross-examine Mr Sheather on the voir dire to further test his knowledge (at [9]).
Admissibility
Garling J held that, having regard to Mr Sheather's position in the investigation at the time, the content of the label on the document, and the type and nature of the document, the plan had been adequately identified and was admissible (at [11]). The fact that the plan was prepared by someone other than the identifying witness did not preclude its admission.
Orders Made
- The Photogrammetry Plan of the Kingdom Hall and the copy of it admitted as Exhibit 68.
Key Takeaways
- A crime scene plan need not be identified by its author to be admissible; a supervising officer with sufficient knowledge of the document's provenance and content can provide adequate identification (at [11]).
- The Supreme Court found that Mr Sheather's role as officer in charge of the site, combined with the material recorded in his statement about the plan's label and contents, was sufficient to ground identification of the document (at [9], [11]).
- Relevance was established on two independent grounds: the plan's content as evidence of the physical consequences of the bombing, and its role in rebutting the accused's attack on the adequacy of the police investigation (at [5]-[6]).
- Failure by the accused to cross-examine the identifying witness on a voir dire weighed against the objection to admissibility (at [9]).
- This decision turned entirely on its facts and raises no question of principle, as noted in the catchwords.
Legislation and Cases Referenced
Legislation
- Not Applicable
Cases
- Not Applicable