R v Warwick (No.25)

1. [1]

   On 3 March 2017, the Accused, Leonard John Warwick, was arraigned on an Indictment, dated that day, which consisted of 24 counts arising from seven separate events of alleged criminality (“the Events”).

2. [2]

   To each count, he pleaded not guilty. A trial had been fixed to commence on Monday 14 May 2018. It in fact commenced on Tuesday 15 May 2018. It is presently estimated that over 250 witnesses will be called in the Crown case, and that the trial will last for at least six months. That time will be considerably extended if the Accused calls evidence in his case. The effect of any such extension on the length of the trial cannot be presently determined.

3. [3]

   In order to ensure that the trial is ready to commence on the date fixed and to minimise interruption to the trial once it commences, the Court has, since February 2018, been engaged in the disposition of all pre-trial Motions.

4. [4]

   In the course of these pre-trial hearings, the Court had before it for determination the two Notices of Motion described below.

5. [5]

   On 10 May 2018, the Court made orders dismissing the two Motions and indicated that it would deliver its reasons in due course. This judgment provides the reasons for the making of those orders by the Court.

6. [6]

   At the time when the Motions were being heard and determined by this Court, the trial was scheduled to take place before a jury. After this Court made the orders dismissing the Motions the subject of this judgment, upon the election by the Accused which was agreed to by the Crown, the Court ordered that the trial take place before a Judge alone: s 132 Criminal Procedure Act 1986. Because these reasons are those for making the orders, no reference is made within to the trial occurring before a Judge alone. Any reference to the trial and issues to be determined at trial should be understood as referring to a trial with a jury.

Notices of Motion

1. [7]

   On 8 February 2018, the Accused filed a Notice of Motion (“the earlier Motion”) seeking the following order:

2. [8]

   Argument took place over a number of days on 30 April 2018 and 1 and 2 May 2018. On 2 May 2018, the Court reserved its decision.

3. [9]

   On 8 May 2018, the Accused filed a further Notice of Motion (“the later Motion”) seeking the following order:

4. [10]

   The earlier Motion sought to re-agitate issues which fell for judgment in R v Warwick (No.2) [2017] NSWSC 1225. That judgment, delivered on 6 October 2017, permitted the Crown to lead tendency and coincidence evidence at the trial of the Accused as described in three Crown notices dated 22 June 2017. It also dismissed the application by the Accused for separate trials for the 24 counts on the Indictment, separated in the same way as is presently sought.

5. [11]

   In the course of argument on the earlier Motion, and before the later Motion was filed, the solicitor for the Accused, Mr Connolly, submitted that the resolution of the relief which he sought required the Court to revisit the tendency and coincidence evidence orders because of the significance of the fact that it would not be in the interests of justice for there to be seven trials all involving evidence of all seven Events. In dealing with the issue of tendency and coincidence evidence, Mr Connolly submitted that the Court should require the Crown to call a number of witnesses so that the Court could examine and determine the underlying integrity of the Crown's assertions of similarity in its coincidence and tendency notices.

6. [12]

   The witnesses, whom it was submitted the Crown ought be obliged to call were:

7. [13]

   These witnesses may be conveniently referred to as the “identified witnesses”.

R v Warwick (No.2)

1. [14]

   As earlier indicated, this judgment addressed questions of coincidence and tendency evidence, and also severance of the counts on the Indictment. It also described in some detail the contents of the coincidence and tendency notices, and it provided a summary of the Crown case with respect to each of the seven relevant Events.

2. [15]

   For ease of reference, it will be convenient to repeat here some parts of that judgment in the body of this judgment.

3. [16]

   The Crown’s case is that the Accused was responsible for each of seven Events, which have given rise to the charges in the Indictment.

4. [17]

   The seven Events can be described in the following way:

5. [18]

   The Crown submitted that the context surrounding each of these Events was that during the period in which these events occurred, there were proceedings on foot in the Parramatta Registry of the Family Court of Australia between the Accused and his wife, Ms Blanchard, with respect to the custody of, and access arrangements with respect to, their daughter Trudi who was born in June 1978. As well, the proceedings included claims with respect to the division of property and, in particular, the sale of the former matrimonial home in which the Accused lived. The Accused and Ms Blanchard were married on 19 October 1974. They separated on 17 March 1979.

6. [19]

   The Crown will submit to the jury that each of the seven Events was connected to, or arose out of, the course of the Family Court proceedings, which commenced in 1979, and continued through to 1986.

7. [20]

   The judgment in Warwick (No.2) proceeded with the consent of the then counsel for the Accused on these basal propositions:

8. [21]

   The Crown applications were conducted on the basis of the written Exhibits, being the three Coincidence and Tendency Notices served by the Crown, which became Exhibits PT1 to PT3 inclusive, and the balance of the Exhibits consisting of the Crown case statements referred to above. No other evidence was put before the Court.

9. [22]

   In light of the documentary evidence, and the basal propositions referred to, the Court proceeded to determine the issues before it on the basis that the Crown would establish that the offences were committed, but that the real issue for the jury would be whether the Accused was the perpetrator of the crimes.

10. [23]

    In the judgment, the Court held that the Crown had identified

11. [24]

    Further, the Court held that it was satisfied that the Crown had established that the evidence of the nominated Events had significant probative value with respect to the proof of each other Event. That significant probative value was identified as coming from:

12. [25]

    Finally, the Court concluded that such prejudice as existed from the coincidence and tendency evidence being led with respect to each of the counts on the Indictment was substantially outweighed by the significant probative value of that evidence. The Court also held that the prejudice was not an unfair one.

13. [26]

    In considering the question of severance of the counts on the Indictment, the Court considered the submissions of the Accused that it would be an unreasonable burden on the jury, and that it would be likely to overwhelm them, if they were obliged to consider and return verdicts on a possible maximum of 24 counts at the end of what would necessarily be a lengthy trial.

14. [27]

    The Court was not persuaded that the burden articulated was an unreasonable one in all of the circumstances of the trial. The Court was also not satisfied that any additional consideration which the jury would have to give by reason of there being multiple counts on the Indictment, would be likely to result in any additional prejudice to the Accused.

15. [28]

    Ultimately, the Court concluded that it was not in the interests of justice for there to be seven separate trials of the offences, having regard to the fact that many witnesses would be required to give their evidence on seven separate occasions about the same facts and matters, and in light of the length of time which had passed since the events in question had occurred and the length of time which seven trials would take.

16. [29]

    Accordingly, the Court held that was not in the interests of justice to exercise its powers under the Criminal Procedure Act to order that the counts on the Indictment be tried separately.

A Second Severance Application

1. [30]

   The earlier Motion seeks orders which, in substance, deal with the same issues as those which led to the orders made by the Court in Warwick (No.2). Those orders were made in advance of the trial, but after the Accused was arraigned. By virtue of s 130 of the Criminal Procedure Act, those orders are taken to have been made as part of the trial of the Accused.

2. [31]

   Because this is a second application for severance of the counts on the Indictment, which necessitates the Court overturning the leave it granted to the Crown to adduce tendency and coincidence evidence, s 130A of the Criminal Procedure Act is relevant to the consideration of the matters raised by the earlier Motion.

3. [32]

   That section provides:

4. [33]

   The Crown submitted that the Accused had not shown that the provisions of the section were inapplicable to the orders made in Warwick (No.2), and that the Accused had not demonstrated that it “… would not be in the interests of justice for the order to be binding”, upon the Court in the conduct of the trial.

5. [34]

   The Accused submitted that two matters made it in the interests of justice for the Court to not be bound by the orders which it had made, but rather to determine the Crown's applications for tendency and coincidence afresh, thereby permitting a fresh determination of the application for severance.

6. [35]

   These matters were:

7. [36]

   As well, the Accused argued that the Crown's case on tendency and coincidence would be significantly weakened were the Accused able to establish that:

8. [37]

   It was these submissions which led to the contention before the Court that the Court should require the Crown to call the identified witnesses for examination on this application prior to a finalised determination of these issues.

9. [38]

   A similar submission was put with respect to the later Motion. This Motion called upon the Court to defer the resolution of the earlier Motion to enable the Accused to examine all records produced on subpoena, so that those records could be used in the examination or cross-examination of the identified witnesses or, alternatively, themselves be tendered to the Court on this application to demonstrate that there was insufficient probative value in the tendency and coincidence evidence which the Crown sought to lead, to overcome any prejudicial value to the Accused.

10. [39]

    Finally, it was submitted that the material that had been put before the Court by way of Crown case statements upon the basis of which the Court was asked to admit the tendency and coincidence evidence, was wholly inadequate and that the Court ought to have required the Crown to tender the actual evidence upon which it relied to support the Notices, so that the Court could assess that evidence.

Crown Submissions

1. [40]

   The Crown submitted that the threshold under s 130A of the Criminal Procedure Act necessary for the reconsideration by the Court of its earlier ruling had not been reached, and there was no reason for the Court to reconsider those issues.

2. [41]

   The Crown also submitted that the application by the Accused to require the Crown to call the identified witnesses misunderstood the provisions of each of s 97 and s 98 of the Evidence Act 1995. The Crown submitted that it was not appropriate for a Judge to make any determination which would have the effect of derogating from the task of the jury in assessing all of the evidence before it and drawing such conclusions as it may wish from that evidence.

3. [42]

   Finally, the Crown submitted that even if errors in the Crown case statement referring to the Family Court proceedings of the kind alleged were identified, which was not conceded, this would be immaterial. The Crown reasoned that that this statement was not used to any significant extent in Warwick (No.2). The Crown pointed out that the only information used from the summary was uncontroversial, and was limited to the dates for the commencement and finalisation of the Accused’s Family Court proceedings.

Discernment

1. [43]

   It is convenient first to deal with the submission made by the Accused that the evidence served after the decision in Warwick (No.2) provided a sound basis for concluding that the evidentiary rulings in Warwick (No.2) ought not to be considered binding on the trial Judge.

2. [44]

   In R v Warwick (No.5) [2018] NSWSC 70, I noted that the Crown had served 43 witness statements, three expert reports and 23 new documents, or groups of documents, in the period from 14 November 2017 to 5 February 2018: see [109]-[126]. The content of some of that material was outlined. However, for the purposes of this application, no material was tendered and no submission was made about the contents of any of that evidence. This has the effect that the Court is simply unable to conclude that the evidence served after Warwick (No.2) is of a kind or quality, or else covers facts and circumstances, which would support the reconsideration of the evidentiary rulings which were made in Warwick (No.2).

3. [45]

   The principal question which arises on this application is whether the methodology used by the Court in Warwick (No.2) was appropriate for the Court to adopt, considering that the Court did not receive the actual evidence which the Crown foreshadowed by its application for leave to adduce it. Further, a related issue arose in respect of whether such evidence could be the subject of cross‑examination, so as to test whether it would be sufficiently substantial to support the Notices, rather than to proceed by way of Crown case statements.

4. [46]

   In support of his submission that what was required before the Court could give leave under either of s 97 or s 98 of the Evidence Act was to approach the application by reference to evidence, and not statements of what it was anticipated the evidence would be, the Accused relied upon the words of those sections. It was submitted that, because both sections commence with the word “Evidence”, and in light of the use of that word in ss (1)(b) of each of the sections, the sections mandate that a Court is to proceed by only taking the evidence upon which the Crown wishes to rely, and allowing that evidence to be fully tested.

5. [47]

   I reject this approach. Neither the words used in the Evidence Act, nor the nature of the task engaged upon, nor previous practice, mandate this as the only way in which a Court can approach any ruling on the admissibility of evidence under either the Tendency Rule or Coincidence Rule.

6. [48]

   First, the terms of the sections of the Evidence Act make it clear that a Court grants leave to adduce the evidence in advance of the evidence actually being given. That is because the evidence is held to be “not admissible” unless leave to adduce it is granted. As well, the matters to which the Court is to have regard when the Coincidence Rule is being considered include “…the similarities in the events or circumstances in which they occurred …”. There is no prescription that those events or circumstances must be proved by tendering or calling the evidence for which leave is being sought. These events and circumstances can be established without calling the evidence which ultimately will be relied upon at trial. Depending upon the nature of the evidence and the issues, it may be convenient for the Crown to proceed by putting statements of evidence before the Court. But that is not mandatory.

7. [49]

   The terms of the notice provisions for both sections are identical. Those provisions call for reasonable notice to be provided of the party’s “… intention to adduce the evidence”. Necessarily, any such Notice relates to evidence which is to be given, but has not yet been given at the point of time when the Notice is served. There is no reason to restrict the Court to proceeding to determine the issues raised by such Notices by receiving the evidence itself, although may be a convenient way so to do.

8. [50]

   Secondly, the nature of the task being engaged upon by the Court does not involve any assessment of whether the evidence does impact or would have the effect of impacting upon the determination of the probability of the existence of a fact in issue. There is no requirement for the Court to engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: DSJ v R; NS v R [2012] NSWCCA 9 at [8] per Bathurst CJ.

9. [51]

   In IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, the majority of the High Court concluded at [49] and [51] that the exercise engaged in by a trial Judge considering the probative value of tendency evidence for the purpose of determining admissibility is undertaken on the assumption that the evidence will be accepted by the jury. It follows, as the majority pointed out at [52], that:

10. [52]

    As well, it is no part of the Court’s task in determining whether to allow the Crown to adduce tendency or coincidence evidence, to have regard to evidence which is to be, or may be, called by an accused. It is not part of the exercise for a Court to form a view one way of the other whether the jury would in fact find that the evidence is of significant probative value: DSJ v R at [9]. That is the task of the jury.

11. [53]

    Whealy JA, with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed in DSJ v R, concluded that the role of the trial Judge is not at large. At [55] his Honour said:

12. [54]

    In the circumstances here, the use by the Crown of Crown case statements to set out the case which the Crown intended to prove, prepared as they were for each of the separate Events, together with two statements of evidentiary material being relied upon relating to more than one Event, means that there was an entirely adequate basis for the determination of the Notices. The Crown case statements were a detailed recitation of the facts and circumstances of each Event, including a detailed description of the evidence relating to the Accused. No doubt these were drawn from statements of evidence of the individuals identified as the source of facts and circumstances in the Crown case statements. No challenge was made to the accuracy of these Crown case statements about each of the seven Events (Exh PT4‑10), save that there was raised an issue about the admissibility of the evidence of Mr Barnes.

13. [55]

    On that question, the Crown indicated that even if the evidence was not admissible, the Crown case would rely upon the balance of the evidence outlined in the Crown case statements and the contents of the Notices.

14. [56]

    To require the Crown to call the identified witnesses, as the Accused submitted should occur in order to assess whether their evidence would be accepted and if so, what weight it would carry, would be to lead the Court to embark upon the sort of fact-finding exercise which is contrary to the statute and contrary to authority.

15. [57]

    The solicitor for the Accused, Mr A Conolly, submitted that the reason the identified witnesses should be called was to persuade the Court, insofar as the Crown case statements encompassed the Family Law proceedings, that those proceedings did not give rise to any motive on the part of the Accused to commit the offence. Mr Conolly submitted that if the Court had the evidence of what occurred in the Family Court, rather than an inaccurate summary of it, then the Court would be able to determine that the Crown would not make out its case that the Accused had any motive to commit the offences.

16. [58]

    Mr Conolly submitted that when Ms Blanchard was cross-examined, the Court would be persuaded that the suggested Crown motive would not be established, but was in fact illusory. He submitted that the Accused’s Family Court proceedings did not appear to be out of the ordinary, and that the Accused was “well-treated” and dealt with fairly by Judges in the Family Court.

17. [59]

    It is relevant to note here that proof of a motive is not an essential element of any of the offences with which the Accused is charged. The fact that the Crown asserts that there was such a motive is, if proved, a circumstantial fact to which a jury have regard in determining its verdict. Whether a motive is established to the satisfaction of the jury, and what weight is placed upon it, is a matter for the jury.

18. [60]

    These submissions effectively invited the Court to engage in a preliminary fact-finding exercise which is contrary to the authority discussed earlier. They must be rejected.

19. [61]

    Finally, the approach which the Accused submitted the Court should take is not supported by authority or regular practice. Whilst that does not necessarily mean that it is an inappropriate, it does mean that caution ought to be exercised before embarking on the suggested course.

Conclusion

1. [62]

   I am not satisfied that it is appropriate to accept the submissions made by the Accused, which would require the taking of and assessment of the evidence of the identified witnesses. The only challenge articulated to the Crown case statements in terms of their accuracy and reliability was directed to Exh PT12, the Family Court proceedings statement. Even if, and I make no finding that this is so, the contents of that document were incomplete and thereby inaccurate, the only reference to the Family Court proceedings in my judgment in Warwick (No.2) was to the period of time during which the proceedings were on foot. There is no challenge to the accuracy of the facts recorded in that respect in Warwick (No.2).

2. [63]

   Given these matters, I am wholly unpersuaded that it is not in the interests of justice for the orders made in Warwick (No.2) about tendency and coincidence evidence to be binding on the trial Judge. This means that the rulings on tendency and coincidence evidence ought not to be reconsidered. It follows from this conclusion that the earlier Motion seeking severance of the counts on the Indictment must be dismissed. There is no reason to review the Court’s earlier conclusion, nor its underlying reasoning on the severance issue. Because the earlier Motion is to be dismissed, there is no utility, in light of my conclusions, for the orders sought in the later Motion to be made. The later Motion ought also to be dismissed.

3. [64]

   These are the reasons why on 10 May 2018, I made orders dismissing each of the Notices of Motion filed by the Accused on 8 February 2018 and 8 May 2018.