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Supreme Court 17 December 2019

R v Warwick (No.85)

[2019] NSWSC 1909

Homicide
CRIMINAL PROCEDURE ADJOURNMENT COURSE OF EVIDENCE OPENING CASE CALLING WITNESSES OPEN ITS CASE

Citation: R v Warwick (No.85) [2019] NSWSC 1909
Court: Supreme Court of New South Wales
Date: 17 December 2019
Judge: Garling J

Background

This decision arose during a lengthy murder trial in which the accused stood charged in connection with the 1980 murder of a Family Court judge. By the time of this ruling, the trial had reached its one hundred and forty-fourth day. The Crown had closed its case in late October 2019, and the accused had begun calling witnesses in answer to the Crown case on 27 November 2019.

In late October 2019, the accused's lawyers issued a subpoena to the NSW Police Commissioner seeking duty books, notebooks, and other documents relating to the detectives involved in the reinvestigation and to two civilian witnesses. Production of those documents (exceeding 10,000 date entries) was substantially complete by 11 November 2019. Those materials had not been available when two of the Crown witnesses originally gave their evidence.

By the time of this application, only one further defence witness remained to be called, a forensic pathologist expected to give brief evidence the following morning. The accused's lawyers applied for a whole-trial adjournment until 2020 to allow them to finish reading the subpoenaed documents before the three Crown witnesses were recalled for further cross-examination. The Crown partly opposed this, but had separately agreed to recall those three witnesses, subject to conditions on the scope of further cross-examination.

  • Whether the trial should be adjourned entirely until 2020 to allow the accused's lawyers to complete reading of documents produced on subpoena.
  • Whether the Crown should be granted leave to re-open its case to recall three witnesses for further cross-examination.
  • Whether any such further cross-examination should be limited in scope, and on what terms, pursuant to section 192 of the Evidence Act 1995 (NSW).

Decision

Garling J refused the application to adjourn the whole trial until 2020. His Honour found that the reasons advanced were not sufficient to justify a complete adjournment. The documents relating to the civilian witnesses comprised only 74 pages and were, on his Honour's reading, easy to comprehend. The only remaining trial work in 2019 was one witness's brief evidence and the further cross-examination of one civilian witness, whose recall was set for the following day. No prejudice to the Crown arose from delaying the recall of the two detectives to 2020, because the available trial time in 2019 was short regardless.

On the re-opening question, the Crown had agreed to recall all three witnesses without the need for a contested hearing. Garling J granted the Crown leave to re-open its case accordingly. His Honour noted the relevance of the subpoenaed material to a key issue in this circumstantial evidence trial: whether the Crown could exclude a reasonable hypothesis that the murder was committed by someone unconnected with the deceased judge's judicial work. The documents had not been available to the defence when the civilian witness was first cross-examined, which supported her recall.

The scope of further cross-examination was limited under section 192 of the Evidence Act 1995. Because the two detectives had already been extensively cross-examined across many hearing days on a wide range of matters, Garling J held it was appropriate to confine their further cross-examination to the content of the duty books produced under the subpoena and, specifically, to questions bearing on the adequacy of the reinvestigation conducted since 2013. The civilian witness's further cross-examination was confined to the facts and circumstances in the newly produced documents relating to her and to Mr Gabriel Carr.

Orders Made

  • The Crown's application for leave to re-open its case to call the two detectives and the civilian witness for further cross-examination was granted.
  • Pursuant to section 192 of the Evidence Act 1995, further cross-examination was limited (subject to any further grant of leave) as follows:
  • The civilian witness: confined to facts, matters, and circumstances in the two exhibits produced relating to her and to Mr Carr, and matters arising from those documents.
  • The two detectives: confined to facts, matters, and circumstances in their duty books produced since October 2019, as those matters relate to the adequacy of the reinvestigation conducted since 2013.
  • The application for adjournment of the whole trial until 2020 was refused.
  • The civilian witness was directed to be recalled on 18 December 2019; the two detectives were directed to be recalled in January 2020.

Key Takeaways

  • An application to adjourn a lengthy criminal trial to allow counsel to complete reading of subpoenaed documents will not succeed where the court finds the volume and complexity of the documents does not justify the delay sought.
  • Where newly produced subpoena material was unavailable during a witness's original cross-examination, that circumstance may support the Crown re-opening its case to recall that witness, even without a contested motion, where the parties reach agreement.
  • Under section 192 of the Evidence Act 1995, a court may limit the scope of further cross-examination of recalled witnesses, particularly where those witnesses have already been extensively cross-examined across multiple hearing days.
  • In a circumstantial evidence case, the Crown bears an obligation to exclude all reasonable hypotheses consistent with innocence, consistent with Peacock v R (1911) 13 CLR 619 and R v Baden-Clay (2016) 258 CLR 308. This obligation can make documents bearing on alternative motives directly relevant to the conduct of the trial.
  • Refusing a global adjournment while directing witnesses to be recalled at different times reflects the court's capacity to tailor procedural orders to the actual readiness of the parties and the practical demands on the hearing schedule.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 192

Cases
- Prasad v R [1994] HCA 2; (1994) 68 ALJR 194
- Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407
- R v Baden-Clay (2016) 258 CLR 308
- Peacock v R (1911) 13 CLR 619