R v Warwick

The Evidence

1. The Crown has served on the Accused a document entitled "Order of Witnesses". It includes each witness whom the Crown proposes to call, or else the evidence of whom the Crown wishes to lead. Against the name of each witness is listed the statements and materials from which the oral evidence of the witness is proposed to be led. In respect of Justice Watts, the Crown indicated that his evidence would be led from: "Unsigned statement dated February 1985 Coronial evidence 9 April 1986 and 11 February 1987 Stat[ement] 17 November 2017."
2. The statement of 17 November 2017 of the witness had, as Annexure A to it, a 26 page statement prepared by the witness and dated 15 November 2017.
3. The statement of 17 November 2017, included reference to the witness' expert opinion on the question of: "… the main ways in which the introduction of the Family Law Act 1975 and the establishment of the Family Court in 1976 changed the existing law in relation to divorce proceedings … and to comment on procedural changes …"
4. The statement went on to include remarks addressed to these issues.
5. In the first paragraph of the statement of 15 November 2017, the witness noted the documents which he had read for the purpose of making that particular statement. The first two documents in that list were noted as follows: "1.3 Part of a copy of the Family Court file provided by the Office of the Director of Public Prosecutions ('Family Court file'). 1.4 Part of the Family Court proceedings table (Annexure K) provided by the Office of the Director of Public Prosecutions ('DPP table')."
6. The Family Court file referred to contained some, but not all, of the two volumes which are now tendered.
7. In paragraphs 6 to 15 (inclusive) of the statement of 15 November 2017, the witness described various events which had taken place before he was instructed to act for Ms Blanchard, including events in the Parramatta Registry of the Family Court. In describing these events, the witness referred to the Family Court file and noted in footnotes the specific document, or documents, in that file to which he had had regard.
8. In paragraphs 22 to 36 (inclusive) of the statement of 15 November 2017, the witness described various events which occurred during his absence overseas between February 1983 and May 1983. He footnoted two sources for these descriptions, namely, the Family Court file, and an unsigned statement which he had prepared from the file of Ledlin Watts & Associates, and his own recollection, in February 1985. This unsigned statement was identified by the Crown in its Order of Witnesses as set out in [12] above.
9. In the balance of the statement, the witness described the course of the Family Court proceedings by reference to his own recollection, the Family Court file and the unsigned February 1985 statement.
10. The two volumes of copied documents of the Family Court file that were sought to be tendered included contents of the kind which would be expected. The file includes applications made by one or other of the parties to the proceedings and affidavits filed in support of such applications or, alternatively, in opposition to such applications. It includes transcripts of proceedings before the Court, reasons for judgment with respect to various applications, and orders of the Court recorded either as handwritten Bench sheets or, alternatively, formally engrossed orders. In addition there are miscellaneous documents such as correspondence, requests to inspect the file and other similar material.

Relevance

1. Before coming to deal with the objections made to the evidence consisting of the Family Court file, and of the witness, it is convenient to note the following: 1. on 15 May 2018, which was the first day of the trial, the Crown tendered the original Family Court file, which was, over objection, admitted provisionally as Exh 1. At that time, the only basis for the objection made by the Accused was the absence of compliance with a requirement that the authenticity of the file be proved. Save for that objection, no other objection was taken: R v Warwick (No.24) [2018] NSWSC 691; 2. the evidence in the Family Court file, and that of the witness, deals with the matrimonial dispute between the Accused and his former wife, as it was dealt with in the Family Court of Australia. The Family Court proceedings are a central part of the Crown case in the trial. The Crown case is that each of the seven Events with which the trial is concerned were perpetrated against people who (or in one case, the building housing the Parramatta Registry of the Family Court of Australia, which had a role to play which was adverse to the Accused in the Family Court proceedings between he and his former wife. The Crown case relies not just on what was said in affidavits or else in evidence and submissions in the course of proceedings in the Family Court, but also on the orders which were made and their consequences for the Accused; and 3. the Crown case also relies upon the proposition that the seven Events occurred during the currency of the Family Court proceedings, and that they ceased after the Accused successfully resolved the outstanding claims against him in relation to access to his daughter and resolution of the property affairs of he and his former wife.

Objection to the Evidence of the Witness

1. Objection was taken to the witness being permitted to give opinion evidence. The lawyers for the Accused used the phrase "expert evidence", but in the context here, where the witness was also a witness of contemporaneous fact, it is more felicitous to use the expression "opinion evidence".
2. The principal objection which was taken was that the witness' opinion evidence ought not be admitted because the witness had not adopted the Expert Witness Code of Conduct ("the Code") set out in Schedule 7 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). Further, it was submitted that the material served in advance of the witness' evidence did not comply with the "Makita principles" - a reference to the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
3. It was not in dispute that the witness had not adopted the Code in any of his existing statements, in a separate new statement, or else in his oral evidence. It was also not in dispute that the witness could give evidence of contemporaneous fact and observations which the Crown sought to lead.
4. What was in dispute was whether it was essential to the admissibility of the opinion evidence that the witness adopt the Code, and whether the Code was applicable to him.
5. It was also not in dispute that the witness had relevant expertise as a solicitor in the realm of the practice of law generally and family law in particular, nor was it in dispute that he had extensive experience of the operations of the Parramatta Registry of the Family Court of Australia in the relevant period. As well, as is apparent from the witness' current position as a member of the Bench of the Family Court of Australia, he was well experienced in that area of law.

The Expert Witness Code of Conduct

1. The Code has application, according to its terms, in this way: "1. Application of Code This code of conduct applies to any expert witness engaged or appointed: (a) to provide an expert's report for use as evidence in proceedings or proposed proceedings, or (b) to give opinion evidence in proceedings or proposed proceedings."
2. The balance of the clauses in the Code deal with obligations which fall on the expert, including the contents of any written report or supplementary report prepared by the expert.
3. Rule 31.23(3) of the UCPR provides that unless a court otherwise orders, an expert's written report may not be admitted in evidence unless it contains an acknowledgment of the expert by whom it was prepared that the author is aware of and agrees to be bound by the Code. Rule 31.23(4) of the UCPR contains a similar restriction with respect to oral evidence.
4. The UCPR are not applicable, of themselves, to proceedings in the Court's criminal jurisdiction. However, Part 75 of the Supreme Court Rules 1970 ("the SCR") contains specific provisions dealing with expert witnesses. Relevant to the issues considered in this judgment is Rule 3J which is in the following terms: "3J Expert witnesses (1) This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act). (2) For the purposes of this rule and rule 3K: expert witness means an expert engaged for the purpose of: (a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or (b) giving opinion evidence in proceedings or proposed proceedings. the code means the expert witness code of conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005. (3) Unless the Court otherwise orders: (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and (b) unless an expert witness's report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it: (i) service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and (ii) the report is not to be admitted into evidence, and (c) oral evidence is not to be received from an expert witness unless: (i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and (ii) a copy of the acknowledgment has been served on all parties affected by the evidence. (4) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness: (a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and (b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with. (5) This rule does not apply to an expert engaged before this rule commences."
5. Although the provisions of s 17 of the Supreme Court Act 1970 and the applicability of the SCR to criminal proceedings are not without ambiguity, the Court of Criminal Appeal held in Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 at [725] per McClellan CJ at CL (Latham and Rothman JJ agreeing) that the Code applies to expert evidence in criminal proceedings by virtue of Part 75 r 3J of the SCR. In the absence of full argument, it is appropriate to apply that authority without debate. I note that McClellan CJ at CL's reasoning in Wood on this issue was adopted and followed in Chen v R [2018] NSWCCA 106 at [11] per Hoeben CJ at CL, Schmidt and Campbell JJ.
6. There is also a question as to whether the Code, by its terms, is applicable to the witness whose opinion evidence is the subject of this ruling. It is unnecessary to resolve this issue for the purpose of this ruling.
7. There are two matters which may throw doubt on whether the opinion evidence of the witness is caught by the Code.
8. First, that the witness played a role in the Events the subject of the Police investigation as a witness of contemporaneous fact. He was not retained solely for the purpose of providing an expert opinion, nor was he a witness who did not have actual knowledge of a series of factual events about which he was being asked to give opinion evidence.
9. Secondly, when the witness was first asked to give evidence of contemporaneous fact, the Code did not exist. The Code first came into being as Schedule K to the SCR in 2000, and upon the enactment of the UCPR in 2005 was inserted as Schedule 7 of the UCPR. The Code was later omitted and amended by the Uniform Civil Procedure (Amendment No 82) Rule 2016, which commenced on 9 December 2016. Thus, the statement which the witness originally gave, and his coronial evidence, could not have adopted the Code.
10. Notwithstanding these matters, it is convenient to proceed on the basis that the witness' opinion evidence would be caught by the Code.
11. It is clear that a failure to comply with Part 75 r 3J of the SCR, including an adoption of the Code, does not have the result, contrary to the contentions of the Accused, of the mandatory exclusion of opinion evidence. As was said in Chen at [21]: "That is because s 79 of the Evidence Act establishes an exception to the opinion rule created by s 76 in the case of a person who has specialised knowledge based on his or her training, study or experience, where the opinion is wholly or substantially based on that knowledge. … an expert's evidence is thus not inadmissible when the requirements of Part 75 of the [SCR] have not been satisfied. But that failure is rather relevant to a consideration of the issues which arise under ss 135 and 137 of the Evidence Act …"
12. Chen followed the decision of the Court of Criminal Appeal in Wood (at [728]‑[729] in these terms: "728 It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] (Campbell J); Rich at [333] (Austin J); Stamoulis at [208] (Ipp JA, Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] (Einstein J). This position accords with the view that bias is 'no reason not to admit evidence of [the] expert': Li v The Queen (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71] (Ipp JA, Whealy and Howie JJ agreeing); see also Haoui v R [2008] NSWCCA 209 at [127]. It also aligns with the reality that '[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence': FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] (Ormiston JA, Chernov and Eames JJA agreeing). 729 This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under s 135 or s 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: 'The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under s 135.' I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act. The expert's 'failure to understand his [or her] responsibilities as an expert' (Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party."
13. In Chen the Court went on to express the view that the approach which was set out in Wood, which it had followed, was underscored by other provisions in the Evidence Act 1995, including s 177. That section, which permits evidence of a person's expert opinion to be adduced by the tendering of a certificate signed by that person (which accords with the requirements in s 177(1)), does not refer to, nor does it require, compliance with the Code. As the Court said, at [24] in Chen: "24 Nor does any other provision of the Evidence Act make it a condition of admissibility of oral evidence called from an expert at a criminal trial, that the provisions of the Supreme Court Act, which regulate the Expert Code of Conduct it introduced, be complied with . . ."
14. The Court went on to draw attention to the fact that the requirement introduced by Part 75 r 3J of the SCR arises from rules made under s 124 of the Supreme Court Act, which empowers the relevant committee to regulate and prescribe "… the procedure (including the method of pleading) and the practice to be followed in the Court in all proceedings …". As the Court observed in Chen, s 124 of the Supreme Court Act does not empower the making of rules which deal with the admissibility of evidence in a criminal trial.
15. The Court in Chen concluded that s 124 does not empower the Court to make rules which override what the Parliament expressly enacted in the Evidence Act, including as to the admissibility of expert evidence. It went on to say: "33 … The rule making powers conferred by s 124 are concerned with 'the procedure and the practice to be followed in proceedings before the Court', not with the admissibility of evidence in a criminal trial. 34 That is why it was concluded in Wood that a failure, in criminal proceedings, to comply with the Expert's Code of Conduct provided for by the Civil Procedure Act, does not make the expert's evidence inadmissible, but it is rather a matter to be taken into account on an application for exclusion of evidence, made under ss 135 or 137 of the Evidence Act."
16. Accordingly, the sole ground of objection advanced cannot be upheld.
17. No submission was advanced under either ss 135 or 137 of the Evidence Act that the Court either was obliged, or else ought to, refuse to admit the opinion evidence of the witness because its probative value was substantially outweighed by the danger of unfair prejudice to the Accused, or on either of the bases set out in ss 135(b) and 135(c) of the Evidence Act.
18. That is unsurprising. Having regard to the Crown case, and the relevance to it of what occurred during the Family Court proceedings between the Accused and his former wife, Ms Blanchard, the opinion evidence of the witness was certainly relevant and probative.
19. The Full Bench of the High Court in Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32] held: "To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge'…"
20. The witness, a former solicitor and current judge of the Family Court, clearly has specialised knowledge of proceedings in that jurisdiction based on his training, study and experience. Further, the evidence of the witness, insofar as it related to events in the Family Court proceedings where he was not personally involved, was demonstrably wholly or substantially based on his qualifications as a lawyer and his experience and expertise in family law and the conduct of proceedings in the Family Court. The substance of his evidence was addressed in various statements, and also by reference to the contemporaneous documents contained within the Family Court file.
21. The witness was present and able to be cross-examined, and his opinion was expressed by reference to identified and specific documents. There is no basis to conclude that there is any danger at all that his evidence would unfairly prejudicial to the Accused.
22. Accordingly, for these reasons I determine that the evidence of the witness, insofar as it constituted opinion evidence, is admissible pursuant to s 79(1) of the Evidence Act as an expert opinion.

Objection to Family Court file

1. It is now convenient to deal with the objections to the two volumes of copy documents constituting Family Court file. The Accused initially expressed his objections by reference to the proposition that the Family Court file was hearsay and therefore not admissible.
2. Later, objections were taken to the admissibility of some of the documents as evidence of the truth of the contents of them, or as to whether they were admissible at all. Even though these objections took place sequentially, it is convenient to deal with them all in these reasons.
3. The first objection taken was that the contents of the Family Court file amounted to hearsay evidence, and would accordingly be inadmissible to prove the existence of an asserted fact pursuant to s 59 of the Evidence Act.
4. A relevant exception to the hearsay rule in this context was what may be termed "the business records exception", as contained in s 69 of the Evidence Act. This section covers both first-hand and second-hand hearsay.
5. It is convenient to set out the relevant parts of that section: "69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. … (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)."
6. The definition of what will fall within the ambit of a "business" is located in cl 1 of Pt 2 of the Dictionary to the Evidence Act. Relevantly, "an activity carried on by the Crown in any of its capacities" is a form of "business" for the purposes of the business records exception.
7. The two volumes which were tendered by the Crown constituted the file kept by the Family Court of Australia in respect of the proceedings between the Accused and Ms Blanchard. The Family Court of Australia was created by the Family Law Act 1975: s 21(1). The Family Court is "… an activity carried on by the Crown in any of its capacities" as that phrase in used in the Dictionary to the Evidence Act
8. Each of the documents forming part of the two volumes, and the file as a whole, forms a part of the records kept by the Family Court in the course of and for the "business" which it undertakes. It is immaterial that there may be some inherent discomfort in the notion that a superior court of record, such as the Family Court, is conducting a business. As the solicitor for the Accused said: "I have never seen a court record being considered a business record… The judicial arm of government is not, in the ordinary sense of the words, a business, nor within that section [being s 69 of the Evidence Act]."
9. In my view, the proper question to be asked is not whether the operations of a court fall within the general definition or understanding of the term "business", but rather whether they fall within the definition of the "business" in the Evidence Act. As expressed above, I am satisfied that they do. The Family Court of Australia is an undertaking carried on by the Crown in the exercise of the judicial arm of government. The file is kept in the ordinary course of that activity and contains contemporaneous records made in the course of and for the purposes of the Family Court proceedings.
10. In those circumstances, and subject to the remarks below, the documents contained within the file, each of which contain representations about many facts, fall within the exception for business records set out in s 69 of the Evidence Act.
11. No other provision of the Evidence Act was relied upon in the objection which was made.
12. Neither party drew attention to the provision of s 69(3) of the Evidence Act, which is in the following form: "(3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding."
13. The relevant part of this sub-section is (a). There are a number of documents containing representations which were prepared or obtained for the purpose of the conduct of the Family Court proceedings between the Accused and Ms Blanchard. The best examples of these are the affidavits sworn by either the Accused or Ms Blanchard, and any other witnesses whose evidence was proposed to be relied upon in the Family Court proceedings.
14. Accordingly, at least those documents and the representations in them would be excluded from being admitted under the business records exception to the hearsay rule.
15. In Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No.4) [2008] FCA 1038; (2008) 170 FCR 9, Finn J considered this question at [13]‑[14] and concluded that the purpose contemplated by this sub-section was to preclude unreliable evidence - being that of representations made or prepared in a context which "… might cause the representation to be self‑serving".
16. A similar observation about the underlying purpose of the "carve-out" in sub‑section (3) was made by Leeming JA in Averkin v Insurance Australia Ltd [2016] NSWCA 122; (2016) 92 NSWLR 68. His Honour observed at [114]: "114 In both paragraphs (a) and (b), the exception to the hearsay rule created by s 69(2) is unavailable because there is a link with litigation. It is well established that the underlying purpose of the carve-out in subsection (3) is a concern that the relaxation of the hearsay rule for business records might lead to the admission of self-serving documents. That rationale was given by Barrett J in Vitali v Stachnik [2001] NSWSC 303 at [12] and has been endorsed in numerous subsequent decisions, including in this Court in Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 at [25] (Campbell JA) and [88] (Gyles AJA, dissenting as to the application of the provision)."
17. Leeming JA's reasoning was recently approved by the Court of Appeal in Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67 at [69] (Gleeson JA, Leeming JA and Emmett AJA agreeing).
18. Finn J observed in Hamilton Pharmaceutical at [15] that he was satisfied that the terms of the sub-section did not permit of a conclusion that the representation is confined to the proceedings in which it is being tendered, and may relate to any legal proceedings in which the representation might become admissible. This approach to s 69(3) was also adopted in Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4] (Hamilton J) and R v Adams (No 5) [2016] NSWSC 1563 at [24]-[28] (Button J).
19. Whilst this exception to the business records provision applies only to a limited number of documents, and as it seems to me would not apply to formal documents of a kind prepared by the Court, pleadings, orders or other material, it is perhaps best to consider the admissibility of the entire file on a different basis.
20. The Crown relied upon the fact that it was tendering the file for a non-hearsay purpose, pursuant to s 60 of the Evidence Act. The effect of the Crown's submissions as to relevance and, in the context of its Opening with respect to the context in which the seven criminal Events occurred, made it plain that the Crown relied upon what occurred in the Family Court proceedings as engendering a motive for the Accused to carry out the Events. In those circumstances, the Crown relied upon the contents of the file to indicate what happened in the Family Court proceedings, what was said by all of the witnesses, what was said in the course of any hearing before the Court as contained in the transcript, and the orders made by the presiding Judge having regard to what the Judge heard.
21. In those circumstances, the Crown submitted that although there may be hearsay representations in the various documents contained in the file, the file as a whole (including those representations) was admissible as being relevant for a purpose other than proof of the facts asserted in the representations.
22. There is a second non-hearsay purpose relied upon by the Crown, namely that the file (at least in part) was material provided to Justice Watts for the purpose of his opinion evidence and as a basis for the accurate recounting of his factual evidence. The contents of the Family Court file would therefore be admissible if the evidence of Justice Watts were to be admitted. As I have earlier explained, in my view, that evidence was admissible.
23. The only limitation relevant to admissibility on this basis is that contained in s 60(3), which precludes the application of s 60 in these proceedings to evidence of an admission by the Accused. It is not suggested that there is any material within the Family Court file which falls within the concept of an admission by the Accused with respect to his involvement in any of the crimes with which he is charged.
24. Indeed, these proceedings are being conducted upon the basis that the Accused has not admitted to any police officer or in any coronial or other proceeding, that he was involved in these Events in any way at all.
25. In my view, s 60 applies so as to permit the whole of the Family Court file to be admitted.

Limitations on Use of the Evidence

1. When the ruling of the Court to admit the file was announced, the solicitor for the Accused sought a limitation on material contained in any affidavit sworn by any person other than the Accused. That limitation was sought pursuant to s 136 of the Evidence Act, and in respect of the contents of affidavits sworn by such individuals being taken to be evidence of the truth of the contents of those affidavits. The Accused submitted that it would be unfair to him if the evidence was admitted without such limitation, because he would not necessarily have the opportunity of challenging those statements in circumstances where there was contrary material filed in the Family Court.
2. The Crown did not oppose the Court limiting the use to be made of that part of the Family Court file, and indicated that to the extent that it wished to rely upon that material as being true and correct, it was proposing to call the individual deponents of the affidavits as witnesses in the trial.
3. Accordingly, upon admission of the material, I made an order limiting the use of evidence contained in affidavits sworn by any individual other than the Accused. The limitation on that evidence is that it is not to be admitted as being the truth of the facts stated in the identified affidavits.
4. Finally, the solicitor for the Accused drew attention to s 91 of the Evidence Act and submitted that it was not open to admit as evidence in these proceedings the judgments or decisions of any of the judges of the Family Court in the Family Court proceedings so long as it was intended to prove the existence of a fact that was in issue in these proceedings.
5. In the Family Court file there are number of judgments or decisions which do contain findings of fact. Much of what is written in those decisions or judgments sets out the reasoning behind the Court making particular orders at the time it did. Some, but not all, of the judgments were delivered orally. Some judgments were delivered in the presence of the Accused, and some were not. Whether those judgments came to the attention of the Accused, and if so, when, is not a matter which presently falls for consideration.
6. However, it is clear that s 91 prohibits not the complete admission into evidence of judgments or decision of an Australian court but, rather, the admissibility of evidence of a decision or a finding of fact for a particular purpose, namely to prove the existence of a fact that was in issue in those proceedings. Section 91(2) contemplates that judgments or decisions will be admitted where relevant for another purpose. Even if judgments or decisions are admitted as relevant for another purpose, then the prohibition on their use continues.
7. In light of the terms of s 91, it seems to me that in the circumstances here, it did not preclude the admissibility of the judgments in the file to prove what was said by particular judges in the proceedings, when it was said, why particular orders were made and the basis for the making of those orders. In those circumstances the judgments were relevant and admissible. The prohibition on use described in s 91 remains. It is not a prohibition which can be avoided.

Summary

1. It is for these reasons that I permitted the Crown to lead the evidence of the witness, the Honourable Justice Garry Watts, including his opinion evidence, and admitted, with the limitations identified, the two volume copy of the Family Court file.

Amendments 31 August 2018 - Addition of transcript reference. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2018