Citation: R v Warwick (No.57) [2018] NSWSC 2018
Court: Supreme Court of New South Wales
Date: 16 November 2018
Judge(s): Garling J
Background
This decision arose as an evidentiary ruling within a long-running criminal trial. The Crown sought to tender a police running sheet dated 30 July 1985, authored by retired Detective Kevin Woods. The running sheet recorded the discovery and seizure of three pages of handwritten notes from the accused's home at Casula on that date.
The notes themselves had been given in evidence by retired Detective Senior Constable Malcolm Matthews, who described finding them at the premises and handing them to Woods. A single-page photocopy of the notes had already been admitted as Exhibit 167.
The accused objected to admission of the running sheet on two grounds: that it was incomplete because its original attachments were no longer with it, and that if admitted, its use should be restricted under section 136 of the Evidence Act 1995.
Legal Issues
- Whether the running sheet was relevant and admissible notwithstanding that the original notes and photocopies described as attachments were no longer physically accompanying the document
- Whether, if admitted, the document's use should be limited under section 136 of the Evidence Act 1995 on the basis of unfair prejudice, or risk of misleading or confusing the jury
Decision
Issue 1: Admissibility of the running sheet
Garling J held that the running sheet was relevant and admissible (at [7]). It recorded, as a contemporaneous note, the fact that documents were found at the accused's premises, their contents, what happened to them, the reason for seizure, and the nature of further inquiries to be made.
The absence of the original attachments did not render the document incomplete. Garling J reasoned that the original notes had been entered into an Exhibit Repository and stored separately, which adequately explained their physical separation from the running sheet (at [9]-[11]). The contents of the running sheet were replicated in the already-admitted Exhibit 167, and the document was complete on its face (at [11]).
The running sheet also corroborated cross-examination evidence from Woods about whether records would be made when items of interest were found, as well as his evidence about being shown the notes at the scene (at [8]).
Issue 2: Limitation on use under section 136
Garling J declined to impose any limitation on use. No submission identified any specific use of the document that would be unfairly prejudicial to the accused, or that would be misleading or confusing (at [14]). On the contrary, the running sheet was a contemporaneous document that supported the evidence already before the court, and no basis for unfair prejudice was established (at [14]-[15]).
Orders Made
- The document previously marked MFI OOOO is admitted and marked Exhibit 264.
- No limitation on use is imposed pursuant to section 136 of the Evidence Act 1995.
Key Takeaways
- A contemporaneous police running sheet recording the discovery and seizure of items can be admissible as relevant evidence even where attachments referenced within it are no longer physically accompanying the document, provided a satisfactory explanation exists for their absence (at [9]-[11]).
- The fact that original exhibits were removed from a document and stored in an Exhibit Repository does not, of itself, render that document incomplete or inadmissible (at [11]).
- Under section 136 of the Evidence Act 1995, a limitation on use will not be imposed merely because a party seeks one; the party must identify a specific use of the document that would cause unfair prejudice or create a risk of misleading or confusing the fact-finder (at [14]).
- Where a document's contents are already replicated in an admitted exhibit and are corroborated by oral evidence, the case for exclusion or restriction of that document is significantly weakened (at [11], [13]-[14]).
- This decision turned entirely on its particular facts and the judgment expressly notes no point of principle is at stake.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable