Citation: R v Warwick (No.88) [2020] NSWSC 37
Court: Supreme Court of New South Wales
Date: 31 January 2020
Judge(s): Garling J
Background
This decision arose during a lengthy criminal trial in the Supreme Court. The accused filed a Notice of Motion seeking leave to recall a detective, referred to as Detective Russell, for further cross-examination about a summary table he had prepared. That table, which became Exhibit 714, related to surveillance records of a person referred to as Dr Mariti, compiled by the Joint Bomb Task Force over a period running from 1984 into 1985.
The table was tendered by the Crown during the detective's re-examination. It recorded specific dates on which surveillance records showed Dr Mariti attending a court or court registry, and the underlying surveillance sheets for those identified dates were included behind the table in the exhibit folder.
The accused's solicitor, Ms Ramsay, swore an affidavit contending that the exhibit was incomplete, that it did not include all surveillance records, and that the accused had therefore been deprived of the opportunity to cross-examine Detective Russell on the contents, accuracy, and completeness of the table.
Legal Issues
- Whether the evidence tendered during re-examination, specifically Exhibit 714 and Detective Russell's accompanying testimony, gave rise to a right or proper basis to recall the witness for further cross-examination.
- Whether the alleged incompleteness of Exhibit 714 constituted a matter that could only be properly addressed through further cross-examination, rather than by submission or by tendering additional evidence.
Decision
Garling J dismissed the motion. His Honour found that the affidavit in support proceeded without adequate regard to what Detective Russell had actually said in re-examination. The detective had made clear in his evidence that Exhibit 714 was deliberately selective: it was prepared at the Crown's request specifically to identify dates on which surveillance records showed Dr Mariti attending a court or court building. He had reviewed all available records and the exhibit contained only those relevant to that specific inquiry.
The Court found that the exhibit was never presented as a complete record of all surveillance conducted on Dr Mariti. The asserted incompleteness was therefore not a discrepancy or a new matter arising from re-examination. It was an inherent and openly stated characteristic of the exhibit itself.
Garling J identified two avenues available to the accused that did not require the recall of Detective Russell. First, the accused could make submissions challenging the weight of, or the inferences available from, a selective exhibit. Second, if surveillance records existed that contradicted Detective Russell's evidence (such as records showing Dr Mariti following Mr Knox), those records could be tendered as part of the defence case, or the Crown could be asked to tender them. Neither avenue required further cross-examination of the detective.
Orders Made
- Notice of Motion filed 31 January 2020 is dismissed.
Key Takeaways
- Garling J confirmed that the recall of a witness for further cross-examination is not warranted where the evidence tendered in re-examination does not introduce new matters requiring testing, but instead simply reflects what the witness had openly described in that re-examination.
- Where a document is tendered on an expressly selective basis, and the witness makes clear the limited purpose for which it was prepared, an assertion that the document is incomplete does not by itself establish grounds to recall the witness.
- Challenges to the weight of selective documentary evidence, and to the inferences a party urges the court to draw from it, are properly dealt with by submission rather than by further cross-examination.
- The Supreme Court noted that where records exist that might contradict a witness's evidence, the appropriate course is to tender those records as part of the relevant party's own case, or to request the opposing party to tender them.
- In dismissing the motion, the Court drew a clear distinction between disputes about the nature and purpose of an exhibit (a matter for argument) and disputes about factual accuracy discernible from the exhibit's own contents (potentially a matter for further evidence or cross-examination).
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.