Citation: R v Warwick (No.61) [2018] NSWSC 2017
Court: Supreme Court of New South Wales
Date: 11 December 2018
Judge(s): Garling J
Background
The accused stood trial in the Supreme Court in connection with a bombing at a Jehovah's Witnesses Kingdom Hall at Casula on 21 July 1985, which resulted in the death of a man named Wykes. The officer-in-charge of the Homicide Squad investigation, Mr Myers, was a Crown witness. In preparation for a 1986 coronial inquest into Wykes' death, Mr Myers had compiled a 60-page document titled "Resumé of Investigation" (the Resumé), summarising the state of the police investigation at that time.
During cross-examination at trial, defence counsel challenged the adequacy of the 1985-1986 police investigation and put to Mr Myers that his conclusions expressed to the Coroner, including his opinion linking the accused to the crimes, were not reasonably open to him on the available material. The defence indicated it intended to rely on the alleged inadequacy of those investigations in final submissions as bearing on the accused's guilt.
In re-examination, the Crown sought to tender the Resumé. The defence objected on grounds of hearsay and unfair prejudice under the Evidence Act 1995.
Legal Issues
- Whether the Resumé, which contained hearsay statements and opinions, was admissible in re-examination following cross-examination that put the adequacy of the police investigation and Mr Myers' conclusions in issue
- Whether the hearsay content of the document could be admitted for a non-hearsay purpose under the Evidence Act 1995
- Whether the document should be excluded under sections 135 or 137 of the Evidence Act 1995 on the basis of unfair prejudice to the accused
- Whether, if admitted, any limitation on use under section 136 of the Evidence Act 1995 was appropriate
Decision
Issue 1: Admissibility following cross-examination
Garling J held that cross-examination had introduced into evidence the content of Mr Myers' opinions expressed to the Coroner, and had directly challenged the reasonableness and basis of those conclusions. That course of questioning rendered the material in the Resumé admissible in re-examination (at [15]-[16]). The document was described as a contemporaneous record of the investigations and their results as at April 1986.
Issue 2: Hearsay
His Honour accepted that parts of the document were hearsay, but found that the relevant facts and opinions were admissible for a non-hearsay purpose under section 60 of the Evidence Act 1995 (at [17]). The Crown relied on the document to address the issue of investigative adequacy that the defence had raised and intended to press in final submissions, giving it significant probative value for that purpose (at [21]).
Issue 3: Unfair prejudice
The defence submitted that inaccuracies in the Resumé created a risk of unfair prejudice under sections 135 and 137 of the Evidence Act 1995. Garling J rejected this objection, noting that the trial was being conducted without a jury. The court found that the competing submissions about the document's accuracy could be addressed through the parties' final submissions, and that no danger of unfair prejudice arose from its admission (at [22]-[23]).
Issue 4: Limitation on use
The parties agreed, and his Honour noted, that the document's use would be limited under section 136 of the Evidence Act 1995. The exhibit was to be treated only as evidence of Mr Myers' understanding of the state of the investigation at the time he prepared the Resumé (at [26]).
Orders Made
- The document formerly marked MFI B-L was admitted into evidence and marked Exhibit 315.
- Pursuant to section 136 of the Evidence Act 1995, the use of Exhibit 315 is limited to evidence of Mr Myers' understanding of the state of the police investigations at the time he wrote it.
Key Takeaways
- Where cross-examination squarely puts in issue a witness's conclusions expressed in a prior document and challenges the reasonableness of those conclusions, the document may become admissible in re-examination to address those very matters (at [15]-[16]).
- Hearsay content in a document does not automatically preclude its admission where it is tendered for a non-hearsay purpose; section 60 of the Evidence Act 1995 permits such material to be received for a different purpose (at [17]).
- A contemporaneous summary of an investigation's scope and results can carry significant probative value where the adequacy of that investigation has been put in issue by the defence as bearing on the accused's guilt (at [21]).
- In a judge-alone trial, the risk of unfair prejudice from a document containing potentially inaccurate statements is reduced because the court, unlike a jury, can be expected to weigh competing submissions about accuracy and assign appropriate weight to the evidence (at [23]).
- Section 136 of the Evidence Act 1995 provided a practical mechanism to manage residual concerns about the document's use, with both parties agreeing to confine Exhibit 315 to evidence of the witness's state of understanding at the time of writing (at [26]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable