R v Warwick (No.47)

[2018] NSWSC 1325

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.47) [2018] NSWSC 1325
Hearing dates:	27 August 2018
Date of orders:	27 August 2018
Decision date:	27 August 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	The whole of Exh 73 is admitted unconditionally, except for “the excluded parts”
Catchwords:	EVIDENCE – provisional relevance – certificate previously admitted provisionally – evidence relevant and not hearsay – certificate admitted unconditionally
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Warwick (No.41) [2018] NSWSC 1287
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.2100)

1. Exhibit 73, a certificate signed by Mr Goetz, was tendered and admitted provisionally pursuant to s 57 of the Evidence Act 1995 at an earlier point in time in the trial: R v Warwick (No.41) [2018] NSWSC 1287.

2. As those reasons show, to be admitted completely, further matters of fact needed to be adduced by the Crown.

3. The Crown now tenders the whole of the Certificate unconditionally, except for the recording of the results of the Adenylate Kinase (“AK”) test, namely AK-1, and the Adenosine Deaminase (“ADA”) test, namely ADA-1, and the opinion expressed in the document by Mr Goetz as to the percentage of the population whose blood might be expected to replicate all of the test results (“the excluded parts”).

Evidence of Mr Goetz

4. The evidence of Mr Goetz is that he received from New South Wales Police, in particular Plain Clothes Constable Constable, on 24 July 1985, the items described in the P377 form, which is now Exh 67. Mr Goetz has given evidence that upon receipt of these items, he allocated the number "85/306" to the request from the Police for the testing of the items described in Exh 67.

5. The first step in that procedure was that he received the items and recorded those items in the register book. The extract of that register book, which is in his handwriting, has been admitted and is in evidence. It records that Mr Goetz was the scientist in charge of the particular job at the Division of Forensic Medicine (“the DFM”). It records, in brief terms, the salient features contained in the P377 form, including the notation of the number of items received.

6. That evidence is sufficient to satisfy me of the basis of the allocation of the DFM job number contained on the Certificate, Exh 73, by Mr Goetz. As well, the identification by him of his handwriting corroborates that conclusion.

7. Mr Goetz also records in his Certificate that he is employed as a Forensic Biologist and has scientific qualifications which qualify him for that position.

Proposed Exhibit

8. That Certificate, which is now sought to be tendered unconditionally, or at least, those parts of the Certificate which are sought to be tendered unconditionally, record the results of tests which Mr Goetz himself undertook or in which he participated, whilst the items were being tested in the laboratory of the DFM.

9. The evidence of Mr Goetz is that he had either the primary or a secondary role in each of those tests and that he personally saw, and can give evidence of, the results of those tests. Those results are recorded in the Certificate.

Discernment

10. In all of the circumstances, I am satisfied that the evidence of Mr Goetz with respect to those items sufficiently identifies the nature of the tests, the purpose of them and the results which were obtained from them in relation to the items of carpet and cardboard, I have previously held that those items are admissible in evidence as being relevant because they were taken from the scene of the Kingdom Hall bombing at Casula on 21 July 1985. They are now marked Exh 75 (cardboard) and Exh 76 (carpet).

11. I am also satisfied, on the evidence given by Mr Goetz, that the parts of the Certificate that are sought to be tendered unconditionally are not hearsay, nor are they based on a hearsay account of anyone else. The role which he played is sufficient, in my view, to demonstrate that his evidence of the relevant parts of the Certificate is the consequence of his own activities and the testing which he, himself, undertook in either a primary or secondary role.

Orders

12. In those circumstances, I admit the whole of Exh 73 unconditionally, except for “the excluded parts”.

******

Amendments

31 August 2018 - Addition of transcript reference.

Typographical amendment [3].

31 August 2018 - Further amendment.