Citation: R v Warwick (No.47) [2018] NSWSC 1325
Court: Supreme Court of New South Wales
Date: 27 August 2018
Judge(s): Garling J
Background
This decision is a discrete evidentiary ruling in an ongoing criminal trial arising from a bombing at a Kingdom Hall in Casula on 21 July 1985. At an earlier point in the trial, the Crown tendered a scientific certificate (Exhibit 73) signed by Mr Goetz, a Forensic Biologist at the Division of Forensic Medicine. That certificate was admitted provisionally under section 57 of the Evidence Act 1995, pending the Crown establishing certain foundational facts.
The certificate recorded the results of forensic tests performed on items of carpet and cardboard taken from the bombing scene. Those items had previously been found to be admissible as relevant evidence. At this stage of the proceedings, the Crown sought to have most of the certificate admitted unconditionally, excluding only the results of two specific blood-typing tests (the AK and ADA tests) and an opinion about the percentage of the population whose blood might match all test results.
Legal Issues
- Whether sufficient evidence had been adduced to lift the provisional status of Exhibit 73 and admit it unconditionally under the Evidence Act 1995
- Whether the relevant parts of the certificate constituted hearsay, or were instead based on Mr Goetz's own direct participation in the testing
Decision
Issue 1: Sufficient foundation for unconditional admission
Garling J was satisfied that the evidence given by Mr Goetz established the necessary factual foundation. Mr Goetz had personally received the items from NSW Police on 24 July 1985, allocated the relevant job number, and recorded the items in a register book written in his own handwriting (at [4]-[6]). That evidence sufficiently identified the basis for the job number recorded on the certificate and corroborated his involvement (at [6]).
The certificate also recorded results of tests that Mr Goetz himself undertook or participated in, either as the primary scientist or in a secondary role (at [8]-[9]). Garling J was satisfied that this evidence sufficiently identified the nature of the tests, their purpose, and the results obtained from the items of carpet and cardboard (at [10]).
Issue 2: Hearsay
Garling J was also satisfied that the parts of the certificate sought to be tendered unconditionally did not constitute hearsay and were not based on any hearsay account from another person (at [11]). The role Mr Goetz played in conducting or participating in the tests was sufficient to establish that the relevant entries in the certificate reflected his own direct activities and observations (at [11]).
Orders Made
- The whole of Exhibit 73 is admitted unconditionally, except for the results of the Adenylate Kinase (AK-1) and Adenosine Deaminase (ADA-1) tests, and the opinion expressed by Mr Goetz as to the percentage of the population whose blood might be expected to replicate all test results.
Key Takeaways
- Under section 57 of the Evidence Act 1995, evidence admitted provisionally may be admitted unconditionally once the party tendering it adduces sufficient facts to satisfy the foundational requirements for admissibility.
- A forensic certificate recording test results does not constitute hearsay where the certifying scientist personally conducted or participated in each of the relevant tests and can give direct evidence of the results recorded.
- Corroborating evidence, such as a contemporaneous register entry in the scientist's own handwriting, can support the court's satisfaction that a document's internal references (such as a job number) are properly established.
- The Supreme Court confined its unconditional admission to those parts of the certificate grounded in Mr Goetz's direct participation, excluding portions that went beyond his personal testing activities, including statistical opinion evidence about population probabilities.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Warwick (No.41) [2018] NSWSC 1287