Citation: R v Warwick (No.58) [2018] NSWSC 2016
Court: Supreme Court of New South Wales
Date: 20 November 2018
Judge(s): Garling J
Background
This decision arose as an evidentiary ruling within an ongoing criminal trial. The accused faced charges relating to multiple criminal events, including the murder of a named victim referred to in the judgment as Stephen Blanchard, designated "Event 1" in the proceedings.
The Crown sought to call a former detective sergeant, who had been the officer-in-charge of the original murder investigation, to give evidence-in-chief by reading from a written statement he had prepared on 28 June 1982. That statement had been prepared for the purposes of a coronial inquest into the victim's death, scheduled for 5 July 1982. The accused opposed the application, arguing the statement was not sufficiently contemporaneous with the events it described.
The central dispute was whether the statement met the statutory requirements under section 33 of the Evidence Act 1995, which permits police officers to give evidence in criminal proceedings by reading from a written statement, and whether any limitations on use should be imposed.
Legal Issues
- Whether the statement of 28 June 1982 satisfied the contemporaneity requirement under section 33(2)(a) of the Evidence Act 1995, given it was prepared some years after the commencement of the underlying investigation.
- Whether the contents of the statement were admissible in the context of the issues raised at trial, including the adequacy of the police investigation.
- Whether any portion of the statement should be subject to a limitation on use under section 136 of the Evidence Act 1995.
Decision
Issue 1: Contemporaneity under section 33
Garling J held that the statement was admissible under section 33 of the Evidence Act 1995. Although the statement was prepared some years after the investigation began, the witness had reviewed his own notes and the police file at the time of drafting it, in preparation for giving evidence at the coronial inquest (at [10]). Applying the reasoning in Dodds v R [2009] NSWCCA 78, the statement was made "at the time or soon after the occurrence of the events to which it refers" in the relevant statutory sense (at [10]).
Issue 2: Admissibility of content
The contents of the statement were admissible given that the adequacy of police investigations had been placed in issue by the accused (at [9]). The statement addressed who was spoken to and what police were told during the investigation, and paragraph 17 contained the officer's opinion as to the relevant facts and circumstances, which was directly responsive to the accused's challenge (at [7]-[9]). Garling J also noted that certain conclusions in paragraph 14 were potentially exculpatory of the accused, which provided a further reason to place them before the court (at [11]).
Issue 3: Section 136 limitation
The Crown accepted during submissions that the statement was not tendered to prove the truth of everything recorded in it (at [13]). Accordingly, Garling J imposed a limitation under section 136 of the Evidence Act 1995 on specified portions of the statement that recorded explanations or information provided by third parties, other than the police officer or the accused (at [13]-[14]). Those portions were admitted only as evidence that the statements were made, not as evidence of the truth of their contents.
Orders Made
- Specified material in the statement of Mr Lyndon Reid of 28 June 1982 is admitted subject to a limitation on its use under section 136 of the Evidence Act 1995, namely that it is not evidence of the truth of its contents.
Key Takeaways
- Under section 33 of the Evidence Act 1995, a police officer's written statement satisfies the contemporaneity requirement where it was prepared by reviewing the officer's own notes and the relevant police file, even if that review occurred some years after the investigation commenced, provided the preparation was in connection with giving evidence about those events (at [10]).
- The Court of Criminal Appeal's reasoning in Dodds v R confirms that the phrase "at the time or soon after the occurrence of the events" in this context is assessed by reference to when the officer refreshed their memory from contemporaneous records, not solely by the calendar gap between the events and the statement (at [10]).
- Where an accused places the adequacy of police investigations in issue at trial, the Crown may lead evidence, including opinion evidence from the officer-in-charge, addressing the scope and conclusions of that investigation (at [7]-[9]).
- A section 136 limitation is available to restrict the use of portions of an admitted statement that record information provided by third parties, confining those portions to proof that the statements were made rather than proof of their truth (at [13]-[14]).
- Material within a Crown witness's statement that is potentially exculpatory of the accused provides a further basis for its admission, given the Crown's obligations in relation to such evidence (at [11]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Dodds v R [2009] NSWCCA 78