R v Warwick (No.73) [2019] NSWSC 1255

Supreme Court New South Wales

Medium Neutral Citation: R v Warwick (No.73) [2019] NSWSC 1255 Hearing dates: 11 September 2019 Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Statement of Snr Sgt Edward Schey, except for paragraphs 6 and 7 admitted and marked Exh 500. Catchwords: CRIMINAL LAW – Evidence – Witness evidence – Hearsay – Expert evidence – whether the witness is an expert – whether it is hearsay when it is based on the witness's own knowledge and observations 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) I Benson (Accused)

Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co File Number(s): 2015/222068 Publication restriction: Suppression order in relation to the names of the Accused's wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236.

EX TEMPORE Judgment (T.6736) 1. The Crown tenders a statement by Senior Sergeant Edward Schey dated 17 February 2015. 2. Objection is taken by the Accused to paragraphs 6 through to 11 inclusive, on the basis, speaking generally, that the source of knowledge of the witness is either hearsay or else undisclosed. 3. With respect to paragraphs 6 and 7, the Crown accepts that the information contained in those paragraphs is hearsay evidence. That is self-evidently so, as the paragraphs themselves disclose. However, the Crown submits that the contents of these paragraphs are admissible because the witness is qualified as an expert under s 79 of the Evidence Act 1995. The Crown submits that, on that basis, the contents of the paragraphs are admissible even though they are hearsay evidence. 4. The Crown argues that the evidence in paragraphs 6 and 7 is admissible because the witness has disclosed his experience which is of a kind amounting to knowledge sufficient to constitute him as an expert and the contents are therefore admissible. 5. In my view, this witness is clearly not an expert. First, his evidence is not accompanied by any of the indicia of expertise, such as an Expert Certificate or an acknowledgment that he agrees to abide by the Expert Witness Code. Secondly, and more particularly, the evidence as to where items were stored at any point in time is not an area of specialised knowledge of the kind about which a person can be qualified to give expert evidence. 6. In my view, the witness it is not an expert, the evidence is hearsay and, if objected to, ought be rejected. Accordingly, I reject the contents of paragraphs 6 and 7 of the statement of Senior Sergeant Edward Schey dated 17 February 2015. 7. Paragraphs 8 through to 11 inclusive, are also objected to by the Accused on the basis that even though the evidence, as contained in the statement, purports to be evidence of a fact, it is merely hearsay because the source of the fact must be what the witness had been told by a third party. 8. In my view, this objection fails. 9. The witness commenced performing duty at the Forensic Ballistics Investigation Section in 2006. He is now the Section Commander. The witness indicates in his statement he is personally familiar with the premises from which the Section operates and the associated storage, archive and various recovery rooms provided for the work of that Section. 10. As well, the witness is personally familiar with the premises and storage facilities of the Weapons and Ordinance Disposal Unit which were, for a time, at Zetland, and are now at Londonderry. In the course of his police duties, prior to working with the Section, Senior Sergeant Schey was familiar with the Weapons and Ordnance Disposal Unit site at Zetland because he frequented that site as part of his duties prior to working there. The witness has visited that site on many occasions and seen the inside and outside of the storage container. He was also present when a project commenced to transfer exhibits from the shipping container at Zetland to an archive room at the Sydney Police Centre. He observed that project as it was occurring. 11. In my view, the contents of paragraphs 8, 9, 10 and 11 are admissible because they are based on this witness' own knowledge and observations. They are not hearsay. 12. Accordingly, the statement of Senior Sergeant Edward Schey, except for paragraphs 6 and 7, will be admitted and marked Exh 500.