Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.54) [2018] NSWSC 1716 Hearing dates: 17 October 2018 Date of orders: 17 October 2018 Decision date: 17 October 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Report of Mr Barnes of 23 November 1985 admitted and marked V.D.31 Catchwords: EVIDENCE – voir dire – report of Crown expert – diagram of search area after detonation of explosive device – estimations of size of explosive charge – results of laboratory examinations of device fragments – objection taken on basis of alleged non-compliance with Expert Witness Code of Conduct – report admitted on the voir dire Legislation Cited: Evidence Act 1995 Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 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: Not applicable EX TEMPORE Judgment (T.3767) 1. The Crown tenders a report of the witness Mr Barnes, which he prepared on 23 November 1985 ("the Report"). The Report refers to the bombing of the Kingdom Hall at Casula, which occurred on 21 July 1985. The Witness 1. Mr Barnes has given evidence that, in his capacity as a member of the Metallurgy Division of the Ammunition and Armour Metallurgy Group of the Materials Research Laboratory of the Department of Defence ("MRL"), he was asked to attend the scene of the Kingdom Hall bombing and assist with the investigations which were then being carried out. 2. Having regard to his qualifications and experience, his role, and the organisation of which he was a part, Mr Barnes' concern at the scene was to undertake examinations, and then later to examine and establish the nature and componentry of the bomb fragments which had been recovered from the explosion which occurred at the Kingdom Hall. Objections by the Accused 1. Objection is taken to the Report upon the basis that it does not comply with the present requirements in the Expert Witness Code of Conduct with respect to what is disclosed in it and what statements ought to be made in it. As well, objection is taken on the basis that the assumptions were not properly established, the reasoning leading Mr Barnes to his conclusions was not demonstrated, and that the Crown has failed to produce all documents relevant to the Report. Contents of the Report 1. The Report sets out the examinations which Mr Barnes undertook at the scene and records the results of his observations, and his expert opinion on various matters. Discernment 1. By reference to a diagram (Figure 1) in the Report, Mr Barnes records the primary search area and the location, by reference to a grid, of the fragments subsequently identified by him in his further examinations as coming from the explosive device. The oral evidence that Mr Barnes has given is that in the course of the search at the Kingdom Hall, debris from the floor was gathered, sorted and placed into bags by reference to the grid number in which the material was recovered. 2. Mr Barnes has, in his evidence, said that he assumed that the labels on the bags were correct as the basis for the contents of the diagram in this Report. In respect of some of them he would not have to make that assumption, since he had actively collected the debris or observed the debris being collected. 3. Other evidence in the proceedings given by retired Detective Sergeant Jesse Sheather is that when the search was being carried out, it was conducted in only one grid square at a time. Nothing further was done in the search until that grid was completely searched and the collection of debris was finalised. In this way, there would be no confusion about where items were collected from. 4. In those circumstances, it seems to me that there is material that warranted Mr Barnes making the assumptions which he has made as to the grid squares in which various items were located. 5. There is also evidence with respect to the diagram (Figure 1), that it is based on, and reflects, a hand-drawn diagram which was drawn at the scene by Detective Sergeant Sheather in conjunction with Mr Barnes. In my view, as it indicates where items of particular kinds were recovered in the search area, the figure is justified by the evidence and is admissible. 6. The balance of the Report refers to laboratory examinations carried out by one or other of the specialist officers at the MRL. Mr Barnes has given evidence that he attended at each of those examinations, and observed and concurred with the results obtained and which were ultimately recorded. 7. The records of the tests as presently exist are contained in exhibits V.D.25 to V.D.28 and in V.D.30. There are no current records of the tests referred to in the first paragraph of page 7 of the Report, but nevertheless the basis for those statements has been explained in evidence. As well, Mr Barnes has given evidence about the observations which he made upon examination of various components relating to an alarm clock. 8. Finally, the Report concludes with an estimation of the size and weight of the charge that exploded at the Kingdom Hall. The basis upon which that estimation and opinion has been made is disclosed in the Report, as are the balance of the opinions under the heading "Remarks". 9. I should deal with the issue of the production of documents. Subpoenas have been served in these proceedings on both Mr Barnes personally and the Department of Defence, which is the body responsible for the MRL. Documents were produced by Mr Barnes which have been included in the bundle MFI AE. All parties have had access to such documents as were produced in answer to those subpoenas, and have had that access now for many months. No orders have been sought by the Accused with respect to compliance with the subpoenas or the adequacy of production. There is no basis for any legitimate complaint about a failure by the Crown to produce documents underlying the Report. 10. Given that the Report was written in 1985 – at least 10 years, if not more, before the creation of the Expert Witness Code of Conduct – it is unsurprising that it does not comply with, or address, each of the matters in the Expert Witness Code of Conduct. However, the Crown has, on this voir dire, adduced evidence which seems to me to touch sufficiently upon all of the matters necessary to enable an expert opinion by Mr Barnes to be admitted. 11. In particular, on the material presently available to the Court, Mr Barnes is a person who is well qualified by experience and training, including some courses of study, to give opinions about the matters covered in the Report, which are undoubtedly matters of specialised knowledge. As well, leaving aside comments which I would regard as matters of common sense, Mr Barnes' observations and opinions on any of those technical issues are wholly or substantially grounded in his expertise in a specialised field of knowledge. 12. The Report thereby complies with the fundamental rules for admissibility of evidence in accordance with s 79 of the Evidence Act 1995: see Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32]. 13. In my view, Mr Barnes' Report of 23 November 1985 is relevant and admissible. It will be admitted and marked as V.D.31. Orders 1. I make the following orders: 1. Report of Mr Barnes of 23 November 1985 admitted and marked V.D.31. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2018