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Supreme Court 27 August 2018

R v Warwick (No.46)

[2018] NSWSC 1335

Other
EVIDENCE REPORTS RELEVANT DOCUMENTS ADMITTED UNCONDITIONALLY EVIDENCE ACT 1995, S 57

Citation: R v Warwick (No.46) [2018] NSWSC 1335
Court: Supreme Court of New South Wales
Date: 27 August 2018
Judge(s): Garling J

Background

This decision arises from a criminal trial before the Supreme Court concerning, among other things, blood test evidence linked to the 1985 bombing of a Kingdom Hall at Casula. The Crown sought to tender a bundle of forensic records from the Division of Forensic Medicine, containing worksheets and a draft report compiled by a forensic scientist, Mr Goetz, in July and August 1985.

The bundle recorded the receipt of items from the Ballistics Unit, observations made of those items, and the results of various blood grouping tests. Most tests had been conducted by Mr Goetz personally, but two tests, the adenylate kinase (AK) and adenosine deaminase (ADA) tests, had been carried out by others. The draft report also included an opinion expressed by Mr Goetz in his own handwriting.

The accused objected to the admission of the entire bundle, raising hearsay concerns and questioning the reliability of the witness's memory and the accuracy of the records as a reflection of the work he performed.

Legal Issues

  • Whether the forensic records bundle was admissible in evidence, or whether it was inadmissible hearsay.
  • Whether documents recording test results conducted by persons other than Mr Goetz could be admitted, and if so on what basis.
  • Whether the opinion expressed by Mr Goetz in the draft report was admissible.
  • Whether any parts of the bundle should be admitted only provisionally under section 57 of the Evidence Act 1995, pending further findings of fact.

Decision

Issue 1: The P377 form (receipt document)

Garling J found that a copy of the P377 form, which recorded the receipt of items from the Ballistics Unit, was admissible. The evidence of Mr Goetz and the contents of the document itself satisfied the Court that the form was handed to him and signed on 24 July 1985 (at [7]). The document was admissible to demonstrate the continuity of exhibits in the proceedings under section 60 of the Evidence Act 1995, and no limitation on use under section 136 was considered appropriate given that another copy was already in evidence (at [8]).

Issue 2: The worksheets and draft report (tests conducted by Mr Goetz)

The Court accepted Mr Goetz's evidence that the three remaining documents, a draft report and two general worksheets, were compiled in his own handwriting at the relevant time. They recorded his observations, the steps he took in testing items, and the results of tests he personally conducted, including the phosphoglucomutase (PGM) and precipitin (PPT) tests (at [9]). The Court was satisfied those results were relevant and the evidence was admissible (at [10]-[11]).

Issue 3: Results of the AK and ADA tests and Mr Goetz's opinion

The AK and ADA test results recorded in the bundle were not the work of Mr Goetz, and the opinion appearing in the last sentence of the draft report depended on those results. The Crown tendered those portions provisionally under section 57 of the Evidence Act 1995, which allows conditional admission where admissibility depends on findings not yet made (at [2]). Garling J admitted those portions provisionally, with unconditional admission to depend upon future findings about those test results and the opinion (at [12]).

Orders Made

  • The bundle, except for the results of the AK and ADA tests and the opinion expressed by Mr Goetz in the last sentence of the draft report, is admitted unconditionally and marked Exhibit 95.
  • Insofar as Exhibit 95 records the results of testing Mr Goetz did not personally undertake, and the opinion he then expressed, those parts are admitted provisionally under section 57 of the Evidence Act 1995, with unconditional admission to depend on future findings about those test results and that opinion.

Key Takeaways

  • Under section 57 of the Evidence Act 1995, a court may admit evidence provisionally where its admissibility depends upon findings of fact yet to be made, permitting the trial to proceed without the conditional material being excluded at the outset.
  • Forensic records compiled contemporaneously by a witness in their own handwriting, recording their own observations and test results, may be admissible where the witness gives evidence confirming those records, notwithstanding hearsay objections (at [9]-[10]).
  • Where a document records both the work of the witness and the work of others, the Supreme Court treated the two categories separately, admitting the former unconditionally and the latter only provisionally (at [11]-[12]).
  • The admissibility of an expert's opinion expressed in a document may be dependent on the admissibility of underlying test results not conducted by that expert, making provisional admission the appropriate mechanism until those foundational matters are resolved (at [2], [12]).
  • A document admitted to establish the continuity of exhibits may be admitted under section 60 of the Evidence Act 1995 even where another copy of the same document is already in evidence, with no automatic basis for limiting its use under section 136 (at [8]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Not Applicable