R v Warwick (No.87)

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.87) [2020] NSWSC 36
Hearing dates: 31 January 2020
Date of orders: 31 January 2020
Decision date: 31 January 2020
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Question rejected

Catchwords: EVIDENCE – cross examination – whether question falls outside scope of leave for recall of witness – question disallowed
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 / 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.9135)

The present witness, Detective Julia Bradley, first gave evidence as part of the Crown case on 3 September 2019 and 5 September 2019. In addition to giving evidence-in-chief, she was cross-examined.
Application was made, and dealt with yesterday, to have Det. Bradley recalled so as to permit further cross-examination in relation to identified material. The application to recall the witness was granted subject to a limitation expressed in this way:

“The further cross-examination will be restricted to the subject matters and events referred to in paragraphs 10, 11 and 12 of the affidavit of Elizabeth Ramsay sworn 22 January 2020.”

Those three nominated paragraphs set out the matters, including those in the duty books of Det. Staples and Det. Bradley, upon which the Accused wished to further cross-examine the witness. The matters set out in paragraph 10 of the affidavit were as follows:

“This includes what material each Detective reviewed prior to the interview and the material each had access to prior to and at the time of the interview with Kristin Opas.”

It was said that the duty books in question were only produced in answer to a subpoena issued on 24 October 2019.
The Accused also wished to further cross-examine Det. Staples and Det. Bradley in relation to whether each detective had access to the material which was subsequently and lately produced by the Crown, being the statements of Mr Carr and the investigator's note with the recommendation for further enquiries to be made in the period 2002 and 2003. This material was referred to in paragraph 11 of the affidavit as follows:

“The defence also seeks further leave to further cross-examine Detective Staples and Bradley in relation to the details of her long interview with Kristin Opas and Persia Opas on 31 August 2015, including the details of the conversation which took place on that day for no length an estimated 6 hours.”

Paragraph 12 contained similar content to paragraph 11 save, and except, that it referred to an interview with Owen Muhn and Criselda Muhn.
It is to be observed that what was sought to be the subject of further cross‑examination was what had occurred during an interview on 31 August 2015 with Mrs Opas, and whether at that time Det. Bradley had access to the identified material which is now constituted by Exh 658, Exh 714 and Exh 715.
Detective Bradley was asked about that material in cross‑examination earlier today, and has answered those questions.
The following question has now been asked, to which objection is taken:

“Q. Detective when a document, as his Honour points out, is put on to e@gle.i, that fact is obviously recorded. What I am asking you is how you and those officers working with you concerning the Opas investigation, recorded in e@gle.i the work they did in locating documents.”

I am quite unable to see, notwithstanding submissions from Mr Conolly, how a question touching on the methodology used by Det. Bradley and others with respect to the recording in e@gle.i of work done in locating documents, has anything whatsoever to do with the subject matter set out in paragraphs 10 and 11, to which I have earlier referred.
Nor can I see that the answer to any question could in any way relate to any of the matters raised in paragraphs 10 and 11 of Ms Ramsay’s affidavit.
No application has been made to extend the conditions upon the grant of leave made at the time the application to recall this witness was allowed.
I reject the question. In my view, it falls well outside the boundaries of the grant of leave made by the Court.

Orders

I make the following orders:

Question rejected.

********

The case before the court was between the Crown and Warwick, which dealt with the admissibility of evidence in a criminal trial. The matter was heard in the High Court of Australia. The primary issue was whether a particular question put to a witness during cross-examination went beyond the scope of the leave granted for the recall of that witness. The central concern was whether the question was permissible under the conditions set by the court for the witness's recall.

The court was tasked with determining if the question asked during cross-examination was within the bounds of the leave granted for the witness's recall. The legal issue revolved around whether the question strayed beyond the scope of the topics approved for the witness's return to the stand. The court had to consider the parameters of the leave and whether the question was relevant to the topics that were approved.

The court held that the question put to the witness during cross-examination was not within the scope of the leave granted for the recall of the witness. The court found that the question was outside the approved topics and thus was not admissible. The reasoning was that the leave for recall was limited to specific subjects, and the question posed went beyond these boundaries. The court emphasised the importance of adhering to the conditions set for the recall of a witness to ensure that the trial remains fair and within the legal framework.

The court disallowed the question, thereby affirming that the evidence obtained from it would not be admissible in the trial. The decision underscored the necessity for strict adherence to the conditions set for the recall of a witness to maintain the integrity of the trial process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v Warwick (No.87) [2020] NSWSC 36
Hearing dates:	31 January 2020
Date of orders:	31 January 2020
Decision date:	31 January 2020
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Question rejected
Catchwords:	EVIDENCE – cross examination – whether question falls outside scope of leave for recall of witness – question disallowed
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 / 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.