R v Warwick (No.53) [2018] NSWSC 1714

Supreme Court New South Wales

Medium Neutral Citation: R v Warwick (No.53) [2018] NSWSC 1714 Hearing dates: 15 October 2018 Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Notice of Motion of the Accused of 15 October 2018 dismissed. Catchwords: CRIMINAL PROCEDURE – application by Accused seeking an order that Crown be prohibited from calling a witness – witness alleged to have been discredited by findings of an inquiry unrelated to the present case – consideration of prosecution duty concerning the calling of witnesses – trial judge lacks power to intervene in Crown case in manner sought – application refused Legislation Cited: Evidence Act 1995 Cases Cited: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 The Queen v Apostolides [1984] HCA 38; (1984) 154 CLR 563 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused)

Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Publication restriction lifted on 11 December 2018

EX TEMPORE Judgment (T.3636) 1. On 4 October 2018, it was agreed between the lawyers for the Accused and the Crown that the evidence of Mr Robert Collins Barnes, a Crown witness, would be taken on a voir dire, to enable the expertise of the witness to be subject to challenge by the Accused as to its admissibility, after hearing all of the expert's opinion evidence. 2. By Notice of Motion filed this morning immediately prior to Mr Barnes being called to give evidence, the Accused seeks an order to the following effect, namely, "The Court not accept the evidence of Mr Robert Barnes as an expert". 1. In the course of submissions, it was made plain that what was intended to be achieved by such an order was that the Crown not be permitted to call Mr Barnes to give any evidence at all. Such an order which was sought was not grounded in any specific statutory provision but rather was said to fall within the general jurisdiction of the Court to ensure that there should be a fair trial. 2. In support of the Motion, the Accused relied upon an affidavit of Elizabeth Ramsay sworn 15 October 2018, as well as upon the contents or part of the contents of the report of the Board of Inquiry in the Australian Capital Territory ("the Inquiry") into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester ("the Report"), which was published on 29 May 2014. The Report was tendered by the Accused, admitted as an exhibit in the trial without objection and marked Exh 206.