Citation: R v Warwick (No.48) [2019] NSWSC 206
Court: Supreme Court of New South Wales
Date: 6 March 2019
Judge: Garling J
Background
This decision provides the detailed reasons for a ruling made on 17 September 2018 during a long-running criminal trial. The accused was charged in connection with, among other matters, an explosion at a Jehovah's Witnesses Kingdom Hall at Casula in July 1985. The Crown alleged the accused bore animosity towards members of the local congregation because they had helped his former wife and daughter leave Sydney for an undisclosed address on the mid-North Coast of New South Wales.
In July 1985, police executed a Family Court Writ of Possession at the accused's home. During that attendance, a detective observed three pages of a notebook lying on the kitchen bench, recording addresses and telephone numbers on the Central Coast. He seized them, then photocopied all three pages side by side onto a single sheet of paper. It was that single-page photocopy, rather than the original pages, that the Crown sought to tender at trial.
The accused raised three objections to admissibility: relevance, the document's status as a "copy" under the Evidence Act 1995, and the lawfulness of the original seizure.
Legal Issues
- Whether the photocopy document was relevant to any issue in the trial under section 55 of the Evidence Act 1995.
- Whether a single-page photocopy combining three separate original documents constitutes a "copy document" within the meaning of section 48 of the Evidence Act 1995.
- Whether the original notebook pages were lawfully seized by police, and if not, whether section 138 of the Evidence Act 1995 nevertheless permitted admission of the copy.
Decision
Issue 1: Relevance
The court found the document relevant within the meaning of section 55 of the Evidence Act. The Crown's case was that the notes recorded the accused's attempts to trace his former wife through members of the Lurnea congregation, and earlier witness evidence supported an inference that the accused knew of the congregation's role in helping her relocate. The court was satisfied the document was capable of rationally affecting the probability that the accused held the attitude towards congregation members that the Crown alleged (at [23]).
Issue 2: Copy document under section 48
The court held that the single-page photocopy fell within section 48 of the Evidence Act, which permits proof of a document's contents by tendering a photocopy. Section 51 has abolished the common law best evidence rule. The reference in section 48 to a document in the singular is broadened to include the plural by section 8(b) of the Interpretation Act 1987, and nothing in section 48 requires a copy to exactly replicate the format of the original. Combining three pages onto one sheet does not take the document outside the section (at [28]-[33]).
Issue 3: Lawfulness of seizure
The court found the seizure was neither unlawful nor improper. Once the Writ of Possession was executed, Ms Blanchard held lawful possession of the property and had authority to permit the NSW Police to search it. She had in fact given that permission. Further, the notebook pages were visible on the kitchen bench and were not uncovered through a search at all (at [45]-[47]).
As an alternative finding, even if the entry had been improper, the court held that any such impropriety was of a very low order given the detective's genuine belief in his authority. Applying section 138 of the Evidence Act, the court was satisfied that the desirability of admitting the evidence outweighed the undesirability associated with how it was obtained (at [51]-[53]).
Orders Made
- The single-page photocopy of the three notebook pages seized from the accused's house at Casula was admitted as Exhibit 167.
Key Takeaways
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Under section 48 of the Evidence Act 1995, a copy document need not exactly replicate the format of the original. A photocopy that places three separate notebook pages side by side on a single sheet still qualifies as a copy document, with section 8(b) of the Interpretation Act 1987 extending the singular reference in section 48 to cover plural documents (at [28]-[32]).
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Where a co-owner of premises has been placed in lawful possession following execution of a court writ, the Supreme Court found that person has authority to grant police permission to search the property, rendering the resulting police presence and seizure lawful (at [46]).
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Items in plain view on a surface, visible to any officer entering that part of a premises, are not "discovered during a search" in the relevant sense (at [45]); no search warrant or other authority beyond lawful entry was required to observe them.
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Section 138 of the Evidence Act 1995 involves a balancing exercise. Where a detective genuinely believed he was authorised to be on the premises and any impropriety was therefore of a low order, the probative value of the evidence in the Crown case can tip the balance in favour of admission (at [51]-[53]).
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A document's relevance under section 55 of the Evidence Act 1995 may be established by its capacity to corroborate other evidence about a party's knowledge and motive, even where the document does not directly identify specific individuals or locations with certainty (at [23]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Interpretation Act 1987
Cases
- Not Applicable