R v Warwick

R v Warwick (No.2)

1. 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. For ease of reference, it will be convenient to repeat here some parts of that judgment in the body of this judgment.
3. 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. The seven Events can be described in the following way: Event No. Description Count on the Indictment

5.     The murder of Stephen Blanchard at Revesby on or about 22 February 1980 ('the Stephen Blanchard murder')                 Count 1
   

6.     The murder of Justice David Opas at Woollahra on 23 June 1980 ('the Opas murder')                                        Count 2
   

7.     The bombing of Justice Richard Gee's home in Belrose on 6 March 1984 ('the Gee bombing')                                 Counts 3-4
   

8.     The bombing of the Family Law Court building at Parramatta on 15 April 1984 ('the Family Court bombing')                 Count 5
   

9.     The bombing of Justice Raymond Watson's home at Greenwich on 4 July 1984 ('the Watson bombing')                          Counts 6-8
   

10.     The bomb found in a vehicle at the former home of Garry Watts on 10 February 1985 ('the Watts bombing')                  Counts 9-10
    

11.     The bombing of the Kingdom Hall of the Jehovah's Witness church at Casula on 21 July 1985 ('the Kingdom Hall bombing').  Counts 11-24
    

1. 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.
2. 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.
3. The judgment in Warwick (No.2) proceeded with the consent of the then counsel for the Accused on these basal propositions: 1. the Crown case summaries which had been served by the Crown and which were before the Court as Exhibits PT4 to PT12 inclusive, adequately described the Crown case as it was proposed to be put before the jury and were an adequate basis for the Court to determine the admissibility of the tendency and coincidence evidence; and 2. the Accused did not challenge that each of the seven Events had occurred, although some matters of detail may be put in issue. As well the Accused did not challenge that offences of the kind alleged in the Indictment had been committed. What was clearly put in issue was that the Accused denied any involvement in any of the crimes alleged to arise out of the seven Events. He denied that he was capable of committing the offences.
4. 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.
5. 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.
6. In the judgment, the Court held that the Crown had identified "… similarities of a kind which make it fundamentally unlikely that these events occurred coincidentally."
7. 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: 1. the circumstances of time, namely the period delineated by the start of, and the conclusion of the Family Court proceedings involving the Accused and Ms Blanchard; 2. the connection between the ultimate target (or targets) of each Event with the Family Court proceedings; 3. the connection of an extreme form of violence i.e. use of a firearm, or an explosive device, in each Event to perpetrate the crime; and 4. the nature of each of the Events themselves.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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. 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. 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. That section provides: "130A Pre-trial orders and orders made during trial bind trial judge (1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) …. (3) …. (4) In this section, "pre-trial order" means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial. (5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence."
4. 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. 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. These matters were: 1. the significant amount of evidence served by the Crown on the Accused in the period from October 2017 to February 2018 as constituting evidence which it intended to lead at the trial; and 2. that one of the exhibits, Exhibit PT12, was now able to be demonstrated as being substantially misleading about the steps taken in the Family Court proceedings, including the evidence before the Family Court. It was submitted that in substance, and contrary to the Crown case, the Family Court proceedings between the accused and Ms Blanchard were not exceptional nor out of the ordinary, and were not conducted in an atmosphere of hostility as the Crown sought to argue.
7. 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: 1. the Family Court proceedings did not provide a context or motive for the commission of each or any of the seven Events. In this respect the Accused submitted that when evidence was accurately put before the Court, a relationship between Ms Blanchard and the then principal investigating officer, Detective Woods, would be exposed such that the Court would conclude that the basis for the allegations against the Accused, and the misguided investigations which targeted him, were the unfounded assertions by his ex-wife, Ms Blanchard, that he was solely responsible for each of the seven Events; 2. there was considerable reason to doubt the admissibility of the evidence of Mr Barnes, a forensic expert, whose evidence was the principal basis upon which the Crown asserted similarities between each of the seven Events. In particular, the Accused pointed to three contentions contained in the Crown's coincidence notice with respect to the Events themselves, which were as follows:

• the explosive substance used in the bombs was, or was consistent with, a commercially manufactured high explosive. More specifically, either gelignite or Molanite (Events 3-7);
• the bomb was made using a combination of Molanite and a No.6 instantaneous electric detonator manufactured by the company ICI before 27 May 1991 (Events 6 and 7);
• the component of the bomb was a particular type of battery namely an Eveready 6 volt 509 battery (Events 5 and 7) and which were dependent upon the evidence of Mr Barnes which, it was submitted, would not be admissible once tested and challenged.

1. 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.
2. 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.
3. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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: "… no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to have accepted the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - … . They are both subsumed in the jury's acceptance of the evidence."
10. 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. 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: "55 In my opinion, it is plain that s 98, in its terms, poses this simple question: whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue. Again, in its terms, it requires the trial judge to assess whether the evidence has capacity to that extent and for that purpose. In R v Shamouil Spigelman CJ, in examining s 137 of the Evidence Act, pointed out that, by reason of the terminology of the Dictionary definition of 'probative value', the focus is on the capacity of the evidence to have the effect mentioned. As the Chief Justice said, 'It does not direct attention to what a tribunal of fact is likely to conclude'. 56 Assessment of the probative value of the evidence, whether for the purposes of ss 97, 98, 101 or 137 Evidence Act, does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil at 237 [60]. Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence. See also Lodhi v R [2007] NSWCCA 360 at [174]-[177]; R v Mundine [2008] NSWCCA 55 at [33] where this Court said: ''probative value' is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution. ... to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete'. "
12. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

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