R v Warwick (No.42)

[2018] NSWSC 1292

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.42) [2018] NSWSC 1292
Hearing dates:	17 August 2018
Date of orders:	17 August 2018
Decision date:	17 August 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Photographs and the original item the subject of the photographs are admitted and marked as Exh 74.
Catchwords:	EVIDENCE – admissibility of photographs and cardboard from crime scene – no question of principle
Legislation Cited:	Not Applicable
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.1783)

1. The Crown tenders two photographs, which are presently MFI KK, each of which show a piece of cardboard which, on the Crown case, was recovered from a location identified to Mr Jesse Sheather, formerly a Detective Sergeant in the NSW Police, by Mr Phillip Clapp at the Kingdom Hall at Casula shortly after the bombing on 21 July 1985.

2. As well, the Crown tenders the piece of cardboard which is the subject of those photographs.

3. The Accused objects to the admission into evidence of the photograph and the piece of cardboard. He submits that as Mr Sheather has no specific memory, he is unable to say that the cardboard was in fact the item which he collected at the Kingdom Hall. Further, it is submitted that there was no observable similarity between the items and Mr Sheather’s description of what had been collected. Relevance was not put in issue.

Proposed Exhibits

4. Both the photographs and the piece of cardboard have been referred to by this witness in evidence, and each are the subject of evidence which he has given.

5. The description given in evidence was that Mr Sheather took possession of “cardboard”, and a piece of carpet which was cut out and was probably 1 metre long by 55cm wide. Both items were stored in large brown evidence bags.

6. Mr Sheather also described in evidence the process in place for the transfer of items to the Division of Forensic Medicine (“DFM”) at Glebe from the Ballistics Unit.

Discernment

7. The detail of Mr Sheather’s evidence as to what he removed from the Kingdom Hall is not inconsistent with Mr Sheather’s description. The balance of the evidence, including the bags in which the items were placed at the scene, the retention of the items until submitted to the DFM, the records of the movement of the items and the records of the DFM and in particular, the noting on the items of the DFM allocated number, all combine to satisfy me that a proper factual basis exists to support the identification of the items by Mr Sheather.

Conclusion

8. In my view, by reference to Exhibits 67 and 73 and the evidence given by this witness, I am satisfied that the photographs and the original item the subject of the photographs are admissible.

9. The photographs and the original item the subject of the photographs are admitted and marked as Exh 74.

******

Amendments

31 August 2018 - Addition of transcript reference.

Typographical error [9].