R v Warwick (No.46)

[2018] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.46) [2018] NSWSC 1335
Hearing dates:	27 August 2018
Date of orders:	27 August 2018
Decision date:	27 August 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1)   Except for the results of two specified tests and the opinion expressed by Mr Goetz in the last sentence of the draft report, the document is admitted unconditionally and marked Exh 95.  (2)   Insofar as Exh 95 records the results of testing which Mr Goetz did not undertake and the opinion which he then expressed, the document will be admitted provisionally, depending upon findings to be made in the future about those test results and that opinion.
Catchwords:	EVIDENCE – admissibility of reports and worksheets recording results of blood tests – reports relevant – documents admitted unconditionally – results of two tests and opinion expressed admitted provisionally – Evidence Act 1995, s 57
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.2105)

The Proposed Exhibit

1. The Crown has tendered a bundle of documents, which consists of part of a bundle which was formerly part of MFI XX, the first and last documents in MFI XX having been removed. The bundle contains the records of the Division of Forensic Medicine (“DFM”) concerning blood tests.

2. In the bundle were the results of two tests which Mr Goetz did not himself conduct – the adenylate kinase (“AK”) and adenosine deaminase (“ADA”) tests. As well, there was an opinion expressed in the document entitled “Draft Report” by Mr Goetz. The Crown tendered those parts of the bundle provisionally pursuant to s 57 of the Evidence Act 1995, because those parts depended upon the Court making other findings of fact.

Objections

3. The Accused objected to the admission into evidence of the whole bundle on the basis that the documents were hearsay.

4. As well, the Accused objected to the documents being admitted because he was “… not satisfied …” about the extent of the witness’ memory, and on the basis that the sheets were not a record of what Mr Goetz remembered. As well, the Accused submitted that the bundle did not represent the work that Mr Goetz says he undertook.

Relevance

5. The tests undertaken by Mr Goetz, which are referred to in the proposed exhibit, related to bloodstains found at the Kingdom Hall bombing site at Casula on 21 July 1985. They are clearly relevant and no suggestion to the contrary was made.

Discernment

6. Although tendered as a bundle, it is convenient to deal with the documents separately.

7. The proposed exhibit includes a copy of a P377 form, the original of which is Exh 67. I am satisfied from the evidence given by Mr Goetz, and the contents of the document itself, that this copy was handed to the witness, Mr Goetz, by Plain Clothes Constable Constable on 24 July 1985, and that Mr Goetz signed it on that day to indicate his receipt of items conveyed from the Ballistics Unit.

8. The continuity of the items, which are exhibits in these proceedings, is demonstrated by the copy of the P377 in this proposed exhibit. It is admissible for that purpose pursuant to s 60 of the Evidence Act. Because another copy of the same document is already in evidence, I am not satisfied that any limitation on use under s 136 of the Evidence Act is appropriate.

9. The other three documents, consisting of a draft report and two general worksheets, with the exception of the items described in [2] above as being tendered provisionally, were also the subject of evidence from Mr Goetz. Mr Goetz gave evidence that these documents were compiled in his handwriting at the relevant time in July and August 1985. They record his observations of what he saw on the items, what he did to the items by way of labelling and testing, and then the results of tests he conducted.

10. Mr Goetz has said, and I accept, that he undertook all relevant tests himself as the primary or secondary tester, except that he did not undertake the AK and ADA tests. The results of the tests conducted by Mr Goetz, including the phosphoglucomutase (“PGM”) and the precipitin (“PPT”) tests, are relevant as discussed in [4] above. Accordingly, I am satisfied that this evidence is admissible.

11. With the exception of the results of the AK and the ADA tests and Mr Goetz’s opinion expressed in the last sentence of his draft report in his own handwriting, the proposed exhibit will be admitted unconditionally and marked Exh 95.

12. Insofar as any of the documents in Exh 95 record the results of testing which Mr Goetz did not personally undertake, namely the AK and ADA tests, and the opinion which he then expressed, those parts of the exhibit will be admitted provisionally in accordance with the Crown’s tender, pursuant to s 57 of the Evidence Act. Unconditional admission of those parts will depend upon findings to be made in the future about those test results and that opinion.

Orders

13. I make the following orders:

1. Except for the results of two specified tests and the opinion expressed by Mr Goetz in the last sentence of the draft report, the document is admitted unconditionally and marked Exh 95.

2. Insofar as Exh 95 records the results of testing which Mr Goetz did not undertake and the opinion which he then expressed, the document will be admitted provisionally, depending upon findings to be made in the future about those test results and that opinion.

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