R v Warwick (No.33) [2018] NSWSC 1219

R v Warwick (No.33) [2018] NSWSC 1219

The opinion evidence of the Family Court judge, Justice Watts, was admissible despite non-compliance with the Expert Witness Code of Conduct, as the Code does not establish a mandatory precondition for admissibility in criminal proceedings, and the requirements of s 79 of the Evidence Act were met. The Family Court file was admissible both as a business record (with exceptions) and for non-hearsay purposes relevant to the Crown's case on motive. Certain uses of affidavits and judgments were limited to avoid use as proof of facts in issue, complying with ss 136 and 91 of the Evidence Act.

Parties
Prosecution: The Crown; Accused: Leonard John Warwick
Jurisdiction
Australia
Judgment Date
09 August 2018
Procedural Posture
Criminal / Procedural Ruling on Evidentiary Issues During Trial
Outcome
Objections overruled; evidence admitted with limitations.
Legal Topics
Opinion Evidence, Expert Evidence, Hearsay, Business Records, Use of Judgments, Expert Witness Code of Conduct
Criminal Law Evidence Law Opinion Evidence Expert Evidence Hearsay Business Records Use of Judgments Expert Witness Code of Conduct

Case Brief

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Parties

The Crown

Prosecution

Leonard John Warwick

Accused

Procedural Posture

Criminal / Procedural Ruling on Evidentiary Issues During Trial

Legal Issues

  1. 1 Whether opinion evidence of a Family Court judge who was also a solicitor involved in relevant proceedings is admissible when the Expert Witness Code of Conduct was not adopted;
  2. 2 Whether the Family Court file is admissible as evidence given hearsay and business records exceptions;
  3. 3 Whether limits should be imposed on the use of affidavits and judgments from the Family Court file in the criminal proceedings.

Ratio Decidendi

The opinion evidence of the Family Court judge, Justice Watts, was admissible despite non-compliance with the Expert Witness Code of Conduct, as the Code does not establish a mandatory precondition for admissibility in criminal proceedings, and the requirements of s 79 of the Evidence Act were met. The Family Court file was admissible both as a business record (with exceptions) and for non-hearsay purposes relevant to the Crown's case on motive. Certain uses of affidavits and judgments were limited to avoid use as proof of facts in issue, complying with ss 136 and 91 of the Evidence Act.

Court Disposition

Objections overruled; evidence admitted with limitations.

Orders

  • Copy of Family Court file admitted;
  • Evidence of Justice Garry Watts permitted to be led;