R v Warwick

Supreme Court of NSW|2018-05-15|Before: Garling J

EX TEMPORE Judgment

This is an application by Notice of Motion filed today by the Accused for, principally, three orders. It is convenient to call this Motion the "Crown Opening Stay Motion". The first order sought is as follows: "That the Crown opening to be made on Tuesday, 15 May 2018 not be made until after the hearing of Mr Warwick's Notice of Motion dated 2 May 2018 for a directed acquittal or permanent stay."
The Notice of Motion then seeks to identify four events which should occur prior to the Court hearing the Notice of Motion for a directed acquittal or permanent stay ("the Permanent Stay Motion"). Those events are: 1. all material being produced under the subpoenas which have been issued by the Accused; 2. sufficient time has been given to the parties to examine and address that material; 3. the determination of any applications under s 192A of the Evidence Act 1995; and finally 4. that the Crown and the Accused have had an opportunity to provide the Court with affidavit evidence and written submissions with respect to the Permanent Stay Motion.
Finally, the Crown opening stay Motion seeks an alternative order, or perhaps one which supplements the first order, by seeking a direction from the Court that, in lieu of the Crown opening statement on Tuesday, 15 May 2018, the Crown provide the Court and the Accused with a draft written opening of the Crown case, as it presently stands, with leave to amend that draft opening, if appropriate, in due course.

Vacation of Trial Date

On 11 May 2018, for the reasons which I expressed in an ex tempore judgment, I declined an application made by the Accused to vacate the trial date of 14 May 2018 and to fix the commencement of the trial at a significantly later time: see R v Warwick (No.20) [2018] NSWSC 656. However, on that day I made orders which adjourned the hearing of the commencement of the trial from 14 May 2018 to 15 May 2018.
I fixed the trial to commence on 15 May 2018, and indicated that I would sit to hear the Crown's opening address and any opening address which the Accused wished his lawyers to deliver. I indicated that the Court would then receive the whole of the original Family Court file of the proceedings between the Accused and his former wife, Ms Blanchard and then the trial would be adjourned to resume with the commencement of evidence on Monday, 9 July 2018.
I also indicated that the Court would sit, as required, in the period between 15 May 2018 to 9 July 2018 to hear and determine any outstanding issues that could conveniently be determined prior to the commencement of evidence.
Without repeating all of the reasons which were given in R v Warwick (No.20), ultimately I attempted to balance the Accused's interest in having a fair trial as quickly as might reasonably be possible with his interest in having sufficient time to be ready for the trial and to have a reasonable opportunity to make any substantive pre-trial application that he wished. I use the term "pre-trial" in this context to refer to the point of time before witnesses are called. I also took into account and weighed in the balance the public interest in having the Accused brought to trial as quickly as is possible.
I also concluded that a procedure by which the Crown was called upon to open the case and then to adjourn the trial before the commencement of evidence, would provide a clear and distinct benefit to the Court and to the Accused. In my view, there would be a clear understanding of the Crown case and the method by which it intended to prove the case, as well as the relevance of various parts of the evidence which it proposed to call. I concluded that that course would assist the Court and the Accused in any further preparations for the trial.
I noted a concern by the Accused with respect to the generation of adverse publicity and it not being counted by an opening address by the Accused in accordance with s 159 of the Criminal Procedure Act 1986. I indicated that if the Accused wished to make a short opening address identifying what the position was, that such an opening address would be permitted and it would be permitted to be supplemented when the Court resumed in July.

Submissions of the Accused

The solicitors for the Accused have submitted today, in support of the Crown Opening Stay Motion, that there is a real concern on the part of the Accused with respect to the adverse publicity which will ensue from the Crown's opening, if it is to be delivered tomorrow.
It was submitted that the Accused and his family ought not be subject to further statements made in public which may be anticipated to arise from the Crown opening and which, from the defence point of view, would be both scandalous and wrong. It was submitted that statements of such quality would bring the Accused into disrepute, which would adversely affect his family. It was submitted that such publicity would be a "paralysing issue". If the Permanent Stay Motion was heard and determined prior to a Crown opening in favour of the Accused, it was contended that very little, if any, damage would be done to the reputation of the Accused, and, derivatively, to his family. It was further submitted that by the time such application was to be heard and determined, the defence would be in a position to provide a response, pointing to the deficiencies of the Crown case and its inadequacies, so as to enable a more balanced reporting of the Accused, in respect of press coverage of the Crown opening.
In support of this submission, the solicitor for the Accused put that there were several reasons why the Court should anticipate that ultimately, at the hearing of any permanent stay application, the case would not be the same as it would be if opened at this time.
Given the limited time available for the delivery of this ex tempore judgment, and without referring to all that was put, it is not unfair to summarise the submissions by saying that it was put that there are considerable records and documents held by third parties, which have not previously been seen or viewed by the investigating officers of the NSW Police or the Crown which, when obtained and viewed, would be likely to change the approach of the Crown to the proceedings; and that there is considerable photographic evidence which does not form part of the Crown case but which exists and would be likely to put a different perspective on the Crown case. As well, it was submitted that the Crown case as presently formulated with respect to any expert opinion, would likely be different if the Crown were able to read, take into account and have available such expert evidence as the defence presently intends to serve.
The defence accepted that there has, to some extent already, been publicity about the fact that the Accused was a person of interest at the time of a Coronial inquest in 1987, and that there was wide publicity surrounding the Accused when he was arrested in 2015. As well, the defence accepted that there had been at least one book published in 2014 about the events which are the subject of this trial, and that the Accused was the target of unfavourable conclusions in that book. The Accused submitted that such inferences as were sought to be drawn by the author of that book were plainly wrong.
Whilst the defence accepted that there was such past previous publicity, and that it was relevant for the Court to consider on this motion, it was submitted that the fact of such past publicity was not critical and that there was no reason for the Court to take a course which increased reputational damage to the Accused and posed a risk to the safety of his family. As well, the defence drew attention to the fact that if the opening went ahead and no substantive response was made for some weeks, the adverse publicity would continue unanswered for a significant period of time.
Underlying all of these statements and submissions was the fundamental contention by the Accused that as there is a real and not insubstantial prospect that a permanent stay may be granted by the Court. If such a permanent stay was ordered, there would ultimately be no trial and accordingly little, if any, publicity, about the Accused's involvement as the alleged perpetrator of these events.

Submissions of the Crown

The Crown opposed the relief being sought, submitting that the decision of this Court of Friday, 11 May 2018, had properly balanced all of the interests of the Accused with the right to have a fair trial as soon as reasonably possible, together with the public interest in the prompt disposition of criminal proceedings. The Crown, in effect, submitted that nothing had changed to cause the Court to review the conclusion which it reached in R v Warwick (No.20).
The Crown also submitted that it was inappropriate to speculate on the possible outcome of the Permanent Stay Motion.

Discernment

It seems to me that some features of this application are clear.
The first is that it is no surprise to the public at large that the Accused has been charged with these offences and is facing trial with respect to them. There has been publicity now, for at least 30 years, that the Accused was a person of interest at the time of the Coronial Inquest into at least one of these events. I am told that part of the evidence in the trial will be a recorded interview which the Accused gave voluntarily in the television media at a point in time after the Coronial Inquest had been completed. The Accused had the allegations of his involvement in the events put to him and denied any such involvement.
The second matter that can be identified is that if the Crown Opening Stay Motion is successful, what is being sought is not to prevent the Crown making an opening or that opening being made in public, but, rather, to defer the time at which such opening would be made from tomorrow until 9 July 2018, being a period of about two months.
Although at one stage it appeared that the defence submitted that there would be no need for any Crown opening at all, it seems to me that, even if the Permanent Stay Motion by the Accused is successful, it will be necessary for the judgment delivered on that application to set out what the Crown's case is, which would be the equivalent of the Crown's opening. True it is the judgment would go on to deal with the response to that Crown opening but, nevertheless, what the Court is being asked to deal with by this motion is to provide for a deferral of the Crown opening rather than the complete removal of the Crown opening from the public arena.
What then flows from those two propositions is that the application centres upon the perceived adverse effects of publicity on the Accused and his family. There is no submission made, nor do I think one could have been made, that the timing of the Crown opening would in any way constitute prejudice to the fairness of the trial to the Accused. On the contrary, having the Crown deliver an opening seems to me, as I said in R v Warwick (No.20), it may indeed be a positive advantage to the Accused and his lawyers to be properly informed about the nature of the case which the Crown brings.
In my previous judgment, I sought to strike a balance in the way I have articulated the competing interests which are earlier described. There is nothing which has been brought forward now which, in my view, would cause me to change my mind about that balance. I am satisfied that it is in the interests of justice that the Crown be called upon to commence the trial and open the Crown case so that the Court and the Accused will have a clear understanding of the way in which the Crown puts its case.
I am not satisfied that there will be any adverse effects, by way of media publicity, which will be any different in substance from that which will occur in any event. Putting it differently, I do not think the amount of adverse media publicity will change whether the Crown case is opened tomorrow or in early July.
I should note finally that, although this does not form part of my consideration with respect to the conclusion I have reached, the Crown indicated, in the course of submission, that the Accused's family - leaving aside his ex-wife, Ms Blanchard and their daughter, Trudi, or, put differently, his current family, forms no part of the Crown case. The Crown does not propose to refer to any member of the Accused's current family and the Crown does not intend to include, in any opening or other evidence, any material that might readily identify any member of the Accused's current family.
On any view, this family was not part of the Accused's family at any time relevant to this case. In those circumstances I have been persuaded that a suppression order, with respect to the Accused's current family, ought be made and I will proceed later today to formalise such orders and make such an order in chambers.
However, in summary, I have concluded that I should dismiss the Crown Opening Stay Motion filed today in respect of Orders 1 and 3, but it seems to me that Order 2, or at least the substance of it, should be further considered and a timetable fixed to enable the Permanent Stay Motion to be heard prior to 9 July 2018.

Orders

I make the following orders: 1. Dismiss Orders 1 and 3 of the Notice of Motion filed 15 May 2018. 2. Stand over Order 2 to 10am on 15 May 2018.

Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. 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: 18 February 2020

At a glance

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Judgment (8 paragraphs)

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Cases Cited (2)

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