Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.91) [2020] NSWSC 75 Hearing dates: 10 February 2020 Date of orders: 10 February 2020 Decision date: 10 February 2020 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Tender of running sheets 170/238 to 170/240 is rejected Catchwords: EVIDENCE – admissibility of evidence – exceptions to the hearsay rule – s 69(2)(b) Evidence Act 1995 – business records exception – second-hand hearsay - application of s69(3)(b) – whether a document used in an investigation that does not lead to an immediate charge falls within s69(3)(b) – held that s69(3)(b) applies – tender of evidence rejected Legislation Cited: Evidence Act 1995 Cases Cited: Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 Lewincamp v ACP Magazines Ltd [2008] ACT SC 697 R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 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 / 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. Suppression orders in relation to identification of particular witnesses. EX TEMPORE Judgment (T.9250) A Running Sheet is Tendered 1. Mr Benson for the Accused tendered a running sheet compiled on 10 May 1987, by Detectives Hohnen and Corrigan. It consists of 3 pages numbered 170/238 to 170/240 (inclusive). 2. The Crown opposed the tender on the basis that the contents of it were not relevant and were entirely hearsay. The Crown added that the fact that the individual who provided the information was not willing to undertake a record of interview makes the information contained within document likely to be entirely unreliable. 3. The Crown submitted that if the document was admitted, its use ought be limited so that it could not be used to prove the truth of the stated facts. 4. Such a limitation was opposed by the Accused. Nature of the Records of Investigation 1. The general evidence in this matter about the investigations undertaken is that running sheets of this kind and with this designation were compiled by detectives who were part of the Joint Bomb Task Force. This was a body of investigators that was formed in 1984 to investigate, primarily, the series of bombings covered in Events 3 through to 7 in this trial, as well as the shootings in Events 1 and 2. As a matter of ordinary practice, whenever information was received by the Joint Bomb Task Force, it was recorded on a running sheet which was then filed centrally. If further investigations were carried out, they were also recorded on running sheets which were given related numbers. Content of the Running Sheet 1. The running sheets tendered refer to an interview with an individual, Mr Victor Andrade‑Pereira, that took place on 10 May 1987. It appears from those running sheets that Mr Andrade-Pereira was, at all relevant times, an inmate in one of three different custodial institutions: The Metropolitan Remand Centre, Berrima Correctional Centre and Goulburn Correctional Centre. Mr Andrade-Pereira told the two detectives from the Joint Bomb Task Force about various conversations he says that he had with Mr Tim Bristow. The Accused contended that Mr Bristow was a person who was reasonably to be regarded as a suspect for some, if not all, of the Events, the subject of this trial. The running sheet also records what Mr Bristow said about Mr Reginald Shatford, who was also said to be a person who was suspected of being involved in some or all of the relevant Events. Submissions for the Accused 1. The document was tendered on the basis that the content of what was said by Mr Andrade-Pereira to the investigating detectives was not only relevant, but was admissible notwithstanding its hearsay nature. In making that submission, the Accused relies upon the provisions of s 69(2)(b) of the Evidence Act 1995. This is an exception which is known as the "business records exception". The admissibility of the contents of a business record under s 69(2)(b) requires that the representation within the document is made "… on the basis of information … supplied by a person who … might reasonably be supposed to have had personal knowledge of the asserted fact". 2. The "representations" relevant for the purposes of s 69(2)(b) in the running sheets are those made by Detectives Hohnen and Corrigan. The representation is that Mr Andrade-Pereira told them various things, and the content of what they were told (the information) is recorded in the document. The asserted facts in this instance are those told by Mr Bristow to Mr Andrade-Pereira. Mr Andrade-Pereira would of course have personal knowledge of what he was told by Mr Bristow. However that does not, in my view, make the content of what Mr Bristow said true, because Mr Andrade‑Pereira has no personal knowledge of those asserted facts. They constitute second-hand hearsay. 3. Accordingly, whatever else may be said of this document, the tender of it could not, and would not prove the truth of that which Mr Bristow said to Mr Andrade-Pereira: see Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 at [33]-[35]. 4. But, it seems to me that the tender is more problematic for the Accused because of the provisions of s 69(3)(b) of the Evidence Act which provides that s 69(2) does not apply if the representation "was made in connection with an investigation relating or leading to a criminal proceeding". Notwithstanding the earnest arguments of Mr Benson for the Accused that s 69(3)(b) does not apply in this context, I have not the slightest doubt that the provisions of s 69(3)(b) of the Evidence Act do apply to the tendered running sheets. 5. Detectives Hohnen and Corrigan were a part of the Joint Bomb Task Force. The Joint Bomb Task Force was investigating the Events, the subject of these proceedings. The running sheets were made in the course of that investigation and which related to a criminal proceeding. The words "in connection with" are words of wide import: see R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 at [96]. The use of the words "criminal proceeding" in the Evidence Act do not require proof of the fact that a criminal proceeding existed at that time. It is sufficient that this material relates to a criminal proceeding that may be initiated at a time after the record is made: see Lewincamp v ACP Magazines Ltd [2008] ACT SC 697 at [29] of Annexure 2 to the judgment. 6. Mr Benson relied upon the fact that the tendered running sheets were made in the course of the investigations undertaken by the Joint Bomb Task Force. He drew attention to the fact that as a consequence of that investigation, no‑one was charged with any offences relating to the seven Events, the subject of this trial. He submitted that once the business and workings of the Joint Bomb Task Force was finished and that investigation was terminated, it cannot be said that, by reason of a later charging of a person such as the Accused, the earlier records of a discontinued investigation can fall within the provisions of s 69(3)(b) of the Evidence Act. 7. I reject this argument. It does not seem to me to matter by whom or when a person is charged with a criminal offence. The question which must be asked in relation to s 69(3)(b) is whether at the time the documents were created, the purpose of their creation was to record representations which related or lead to a criminal proceeding. As Besanko J said in Lewincamp at [29] of Annexure 2: "But if an investigation does not in fact relate to or lead to a criminal proceeding, it must be of a type such as to relate or lead in the ordinary course of events, to a criminal proceeding. Police investigations would fall within this …" 1. In my view, s 69(3)(b) precludes the application of s 69(2)(b) (if it were otherwise applicable). The contents of the document are not admissible as evidence of truth of them. In those circumstances, the running sheets are not relevant to any issue in the trial, and the tender is rejected. Orders 1. I make the following orders: 1. Tender of running sheets 170/238 to 170/240 is rejected. ******** 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: 17 February 2020