Citation: R v Warwick (No.60) [2018] NSWSC 1875
Court: Supreme Court of New South Wales
Date: 5 December 2018
Judge: Garling J
Background
The proceedings concerned a criminal trial before Garling J sitting alone (without a jury). The accused faced charges relating to a number of events, including a bomb explosion at a Jehovah's Witness Kingdom Hall at Casula on 21 July 1985.
During the evidence of a retired NSW Police officer who had been the officer in charge of the Homicide Squad investigation into the bombing, the Crown sought to tender a bundle of police running sheets. Running sheets are internal police records documenting investigative inquiries and their results.
The accused contested the tender of the bundle, raising objections grounded in the hearsay and opinion content of the documents and the risk of unfair prejudice arising from the inability to cross-examine the officers who created them.
Legal Issues
- Whether the running sheets were admissible despite containing hearsay and opinion material, under sections 60 and 77 of the Evidence Act 1995 (NSW)
- Whether the court should exercise its discretion to exclude the evidence under section 135 (general discretion to exclude) or section 137 (mandatory exclusion where unfair prejudice outweighs probative value) of the Evidence Act 1995
- Whether a limitation on use under section 136 of the Evidence Act 1995 was appropriate, and whether such a limitation would adequately address the prejudice raised by the accused
Decision
Issue 1: Hearsay and opinion content
The Crown tendered the running sheets not as proof of the truth of their contents but to address the accused's challenge to the comprehensiveness and adequacy of the police investigation. Garling J accepted that this non-hearsay purpose brought the documents within the reach of section 60 for fact-based content and section 77 for any opinion content, making them admissible despite their hearsay character (at [4]-[6]).
Issue 2: Exclusion under sections 135 and 137
The accused argued that the inability to cross-examine the officers who created the running sheets gave rise to unfair prejudice outweighing the documents' probative value. Garling J rejected this concern in the context of a judge-alone trial, noting that a judicial officer is not susceptible to the misapprehension of the kind that might affect a jury, and that both parties would have the opportunity to make submissions about how the documents should be interpreted and used (at [10]-[11]). The Crown's agreement to accept a limitation on use further diminished the risk of prejudice, and the accused's own solicitor acknowledged that such a limitation would significantly reduce, if not entirely remove, the unfair prejudice described (at [12]-[13]).
Issue 3: Limitation on use under section 136
Garling J ordered that the exhibit be admitted subject to a section 136 limitation: the contents of the running sheets could be used only as evidence of the fact, nature, and extent of the inquiries made by NSW Police, not as proof of the truth of any representations contained within them (at [17]). On that basis, neither section 135 nor section 137 required exclusion (at [14]-[15]).
Orders Made
- The bundle of documents formerly marked MFI C-L was admitted into evidence and marked Exhibit 313.
- Pursuant to section 136 of the Evidence Act 1995, the exhibit is subject to a limitation on use: the contents of the documents are not evidence of the truth of the representations contained in them but are evidence of the nature and extent of the inquiries made by NSW Police.
Key Takeaways
- In a judge-alone trial, the risk that a fact-finder will misapprehend the contents of documents admitted without the authors being called to give evidence is materially lower than in a jury trial; Garling J found this reduced the force of a section 137 unfair prejudice argument (at [10]).
- A non-hearsay purpose for tendering a document can bring hearsay and opinion content within sections 60 and 77 of the Evidence Act 1995, making the document admissible notwithstanding that its authors are not called as witnesses (at [5]-[6]).
- A section 136 limitation on use, confining evidence to a specific non-hearsay purpose, can be a decisive factor in resolving a prejudice objection, particularly where the opposing party acknowledges that the limitation substantially addresses the prejudice claimed (at [12]-[14]).
- Where both sections 135 and 137 were invoked as grounds for exclusion, the court assessed each separately but reached the same conclusion on both: the combination of the judge-alone context and the agreed limitation on use meant that probative value was not outweighed by unfair prejudice, nor was the evidence misleading, confusing, or a waste of time (at [14]-[15]).
- Police running sheets recording investigative inquiries can be relevant in criminal proceedings for a purpose other than establishing the truth of their contents, including to address a defence challenge to the adequacy of the original investigation (at [2], [4]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable