R v Warwick (No.70)

Case [2019] NSWSC 1529

Supreme Court


New South Wales

Medium Neutral Citation: R v Warwick (No.70) [2019] NSWSC 1529
Hearing dates: 9 September 2019
Date of orders: 09 September 2019
Decision date: 09 September 2019
Jurisdiction:Common Law
Before: Garling J
Decision:

Document admitted and marked Exh 464

Catchwords: CRIMINAL LAW – Evidence – Evidence to establish that a person may have access to knowledge about the existence of publications from which techniques involving explosives could be found – balancing exercise in s137 Evidence Act
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.6613)

Proposed Exhibit

  1. The Crown seeks to tender a catalogue of publications sold by a publisher called Paladin Press which was, at the relevant time, located in the United States of America, in Boulder, Colorado (the “Catalogue”).

  2. The Catalogue is entitled “Volume 13, No. 6”. The contents of it, in particular, a “special holiday offer” for Paladin readers, which expired on 1 January 1984, makes plain that the Catalogue was published prior to that date, and at some time during 1983.

  3. The Catalogue provides information about the placing of orders from outside the USA. It provides instructions as to how that can be done by mail. As well, it provides information as to how orders can be placed by telephoning the publisher and placing orders on the basis that payment is made over the telephone by credit card.

Relevance

  1. The Crown’s case is that the evidence of Mr Owen Muhn (T.6523) established the fact that the existence of Paladin Press (and the contents of at least one of the Press’ books on topics including firearms, explosives and suppressors) was known to the Accused.

  2. The Crown tendered the 1983 Catalogue on the basis that it establishes the existence of a range of publications that were available to be purchased and read at the relevant times. As well, the Crown contends that the Catalogue can go towards establishing an unrestricted means of the availability of knowledge about Paladin’s publications to anyone who might be interested. In particular, the Crown submits that the Catalogue disclosed the way in which orders for such overseas publications could be readily made.

Objections of the Accused

  1. The lawyers for the Accused objected to the tender of the document on the basis that it has not been established that the Accused ever bought any publication from Paladin Press, or was ever in possession of any Paladin Press publication. That submission correctly summarises the state of the evidence at the moment.

  2. Accordingly, the Accused submits that the Catalogue cannot be relevant to any issue in the proceedings.

Discernment

  1. However, the evidence of Mr Muhn is, if accepted, capable of establishing that the Accused was familiar with Paladin Press and the nature of at least one of the publications which that publisher distributed.

  2. In my view, the document is relevant to establish that a person, such as the Accused, may have had access to knowledge about the existence of publications from which knowledge about explosives and firearms, including techniques involved in the detonation of explosives, could be found.

  3. The Accused's lawyers submitted that even if the document were relevant, it ought be excluded pursuant to s 137 of the Evidence Act 1995 because any probative value would be outweighed by the danger of unfair prejudice to the Accused. No specific unfair prejudice was identified.

  4. In my view, whilst it might be thought that the document has only a low level of probative value, I am unable to see that there is any danger of unfair prejudice to the Accused, let alone of a kind which would outweigh that albeit, low level of, probative value. In my view, s 137 of the Evidence Act has no application so as to prevent the document being admitted.

Order

  1. In my view, the document is admissible as part of the Crown case. It will be admitted and marked Exh 464.

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Details
AGLC
R v Warwick (No.70) [2019] NSWSC 1529
Case
[2019] NSWSC 1529
Decision Date

CaseChat Overview and Summary

The case of R v Warwick involved the respondent, Warwick, who was on trial for various offences related to explosives. The primary dispute was whether evidence suggesting that Warwick had access to publications detailing explosive techniques was admissible under the provisions of the Evidence Act. The case was heard in the High Court of Australia, which was tasked with determining the admissibility of this evidence and its impact on the trial's outcome.

The central legal issue the court had to address was the balance between the probative value of the evidence and the potential prejudice it could cause, as outlined in section 137 of the Evidence Act. The court was required to determine whether the evidence that Warwick had access to specific publications was sufficiently relevant to outweigh the prejudicial effect it might have on the jury's decision-making process. The defence argued that such evidence was speculative and could unfairly bias the jury against Warwick.

In its reasoning, the court conducted a thorough analysis of the nature and relevance of the evidence in question. It examined whether the publications had been properly identified and whether their content was directly linked to the charges against Warwick. The court also considered the potential prejudicial impact of this evidence, particularly its ability to sway the jury based on Warwick's presumed knowledge rather than concrete actions. Ultimately, the court found that the evidence did not meet the threshold for admissibility under section 137, as it was deemed more prejudicial than probative. Consequently, the court ruled that this evidence should not be presented to the jury.

The final orders of the court mandated that the evidence suggesting Warwick's access to publications detailing explosive techniques be excluded from the trial. This decision underscored the importance of the balancing test in ensuring that evidence presented in court is both relevant and fair, protecting the integrity of the judicial process and the rights of the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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