R v Warwick (No.61) [2018] NSWSC 2017

Supreme Court New South Wales

Medium Neutral Citation: R v Warwick (No.61) [2018] NSWSC 2017 Hearing dates: 11 December 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Document formerly MFI B-L will be admitted and marked Exh 315. (2) The parties agree that, pursuant to s 136 of the Evidence Act 1995, the use of Exh 315 will be limited to evidence of Mr Myers' understanding of the state of the police investigations at the time he wrote it. Catchwords: EVIDENCE – relevance – document prepared by police officer for coronial inquest in 1986 – where document addressed police investigations and the witness' opinions on the connection between the accused and the crimes charged – where the adequacy of the police investigation and the reasons for witness' conclusions were put in issue in cross-examination – non-hearsay purpose – no unfair prejudice to accused – document admitted subject to a limitation on use Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable 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.5626) 1. In re-examination of Mr Myers, the Crown has sought to tender a document formerly known as MFI B-L. 2. The evidence before the Court is that MFI B-L was prepared by Mr Myers in or about April 1986 in his capacity as the officer-in-charge of the investigation being conducted by the Homicide Squad, into the bombing on 21 July 1985 the Kingdom Hall of the Jehovah's Witness Church at Casula. Specifically, the document was prepared in anticipation of giving evidence to the Coronial Inquest into the death of Mr Wykes. 3. The document of 60 pages is entitled "Resumé of Investigation Into the Murder of Graham Kenneth Wykes, Bombing of the Jehovah's Witness Kingdom Hall, Verbena Street, Casula, on 21 July 1985". 4. The document was accompanied by a statement which Mr Myers made on 6 April 1986. That statement was marked MFI C-N. 5. In the course of his evidence-in-chief, the Crown established that as the officer-in-charge of the investigation, Mr Myers reviewed a series of running sheets prepared by detectives who were part of the investigation team in addition to other statements and scientific investigations. The Crown also established that Mr Myers liaised with the Joint Bomb Task Force which was engaged with its own investigations into some earlier bombings and the bombing of the Kingdom Hall in July 1985. 6. In cross-examination, Mr Myers was asked and accepted that the Resumé he prepared for the Coroner was "full of information" that he had "no first-hand knowledge of". He responded that that would be a "fair description" as not all of the information in the Resumé was a direct result of any "direct investigation" he had made. 7. Upon reading the Resumé it is plain that the document identifies examinations, testing and investigations undertaken by a variety of people. Clearly, Mr Myers could not have undertaken all of those things himself. 8. In the course of cross-examination, Mr Myers was asked about the content of the investigations which he undertook and the various running sheets which had been prepared, both of the Joint Bomb Task Force and of the Homicide Squad. In respect of running sheets of the Joint Bomb Task Force, it was put to Mr Myers on a number of occasions that the contents of those running sheets would have come to his attention. My Myers agreed that this was so. 9. In cross-examination (at T.5493), Mr Myers was asked about giving evidence before the Coroner in April 1986. He said: "Q. Did you say at that Inquest that Mr Warwick was the only person police could find with a common link to the bombing and a number of other crimes? A. If that's what's in the Resumé, yes, correct." 1. Paragraph 317 of the Resumé, at page 59 of the 60-page document, includes the following statement: "Warwick is the only person with a common link to each of the crimes outlined in this Resumé." 1. That paragraph goes on to consider an issue about whether Mr Warwick was rostered on duty in the Fire Brigade, at the times the relevant crimes were committed. 2. Further cross-examination in this Court then continued: "Q. Sir, when you gave that evidence did it occur to you that you were in no position to make such a statement? A. No. Q. Was that a statement that you were making in relation to your own personal opinion or was it for the New South Wales Police Force? A. The statement I made, based on the information in the investigation that had been carried out, and I didn't make it on behalf of the New South Wales Police Force, I made it on behalf of the investigation and the facts and evidence that had been gathered. Q. Did it occur to you that you simply did not understand the evidence? A. No." 1. The cross-examination continued a little later with these questions: "Q. Well, how was it, sir, that you found yourself able to tell a court, the Coroner, the only person the Police could find with a common link to the bombing and a number of other crimes was Mr Warwick? A. Because that's what the investigation revealed at the time. Q. Well, what was the link, sir? A. I beg your pardon? Q. What was the link? A. The link from? Q. Of Mr Warwick to those crimes? A. The dealings with the Family Law Court and the various judges of the Family Law Court, his - the murder of his brother-in-law, the Jehovah's Witness bombing, he was a person, the only person who I know of and who anybody else knew of, had the common link between all those matters. Q. So was it when you gave evidence before the Coroner that you'd formed the conclusion that Mr Warwick killed his brother-in-law? A. I didn't form that conclusion at all. I said he was a common link between those matters." 1. Mr Myers was then pressed by the solicitor for the Accused about what that common link was. 2. The issue of the existence and the content of any specific opinion expressed by Mr Myers to the Coroner's Court in April 1986 was first introduced into evidence in this trial in the course of cross-examination. Not only was one of the conclusions which Mr Myers expressed to the Coroner raised in cross‑examination with him, but the reasonableness and basis for that conclusion, was challenged. It was put to Mr Myers that he was not in a position to have expressed such a conclusion. I understand that question to be concerned with his conduct on the basis that he was acting reasonably. 3. As a consequence of the questions which were asked and the answers that were given in cross examination, it seems to me that the material in the Resumé has been made admissible and MFI B-L ought be admitted. 4. Some parts of the document are undoubtedly hearsay statements. However, both facts and opinions expressed in the document which are hearsay are admissible for a different purpose and, accordingly, the fact that they are hearsay does not of itself, and without more, preclude their admission: see s 60 Evidence Act 1995. That purpose, or those purposes, are said by the Crown: 1. to explain the answers which the witness gave in cross‑examination and to justify the correctness of his answers; and 2. to address an attack made by the Accused on the Crown case, that the Police investigation into the Kingdom Hall bombing and other investigations, but particularly into the Kingdom Hall bombing, was an inadequate one. 1. The solicitor for the Accused also objected to the admissibility of MFI B-L on the basis of s 135 or s 137 of the Evidence Act that it had very little probative value and that, having regard to what the Accused contended were significant inaccuracies in the Resumé, there was a danger of unfair prejudice to the Accused. 2. In the course of his submission dealing with those issues, solicitor for the Accused made it plain, that the nature of the Police investigations in 1984 and 1985, and perhaps earlier, would be relied upon by the Accused in final submissions. . On behalf of the Accused, it was submitted that such was the inadequacy of those investigations that it went directly to the question of whether the Accused was or was not guilty of the offences charged. 3. It is far too early in this trial to form any view about the merit of such a submission. However, the submissions by the solicitor for the Accused with respect to the admissibility of MFI B-L made it plain that such a point would be relied upon as being a significant one in the course of the trial. 4. In those circumstances, the fact that MFI B-L set out in April 1986 a summary of the investigations which had been undertaken at that point in time, seems to me to carry significant probative value on the question of whether or not the Police investigations were adequate. It is a contemporaneous expression of the nature and extent of the investigation and its results as at that time. It follows that it is relied upon by the Crown as having significant probative value in addressing the issue raised and to be relied upon by the Accused, about the supposed inadequacy of the Police investigation. 5. The danger of unfair prejudice is said to be that there is a risk that the Court would accept statements in the document which are inaccurate, or else not borne out or justified by the evidence led in the trial. 6. Ultimately, that is a matter which can be suitably addressed. This is not a case being heard in front of a jury. The question of what weight will be put on the contents of the document and the competing submissions with respect to it, are matters which the parties will have ample opportunity to address and I see no danger of unfair prejudice to the Accused arising out of the admission of the document into evidence. 7. Accordingly, for those reasons, MFI B-L will be admitted and marked Exh 315. 8. I should note that the copy of the document admitted into evidence contains in paragraphs 64 and 146 the deletion of two lines of material in each of them. That has been done by the Crown in light of a previous ruling given by the Court as to the inadmissibility of some evidence and it therefore constitutes material which, as a consequence of that ruling, it anticipates will not be put before this Court. These redactions are appropriate. No complaint is raised by the Accused with respect to these redactions. 9. I note that the parties agree that Exh 315 will be limited in the use which the Court can make of it pursuant to s 136 of the Evidence Act, in that the exhibit is to be taken to be Mr Myers' understanding of the state of the investigation at the time he wrote it.