R v Darcy (No 2) - [2021] NSWSC 593

Supreme Court

New South Wales

Medium Neutral Citation: R v Darcy (No 2) [2021] NSWSC 593
Hearing dates: 9 April 2021
Date of orders: 13 April 2021
Decision date: 13 April 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Paragraph 3(iv) of the Subpoena for Production issued to the Commissioner of Police filed 11 March 2021 is set aside

Catchwords:
PRACTICE AND PROCEDURE – subpoenas – application to set aside subpoena in part – no legitimate forensic purpose - application granted

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
Carroll v Attorney General (NSW) (1993) 70 A Crim R 162
Fantakis v Local Court of New South Wales [2020] NSWSC 931
Mann v Commissioner of Police [2020] NSWSC 369
R v Darcy [2021] NSWSC 12

Category: Procedural rulings
Parties: Regina (Crown)
Natasha Beth Darcy (Accused)
Representation:
Counsel:
B Hatfield (Crown)
J Manuell SC / N Broadbent (Accused)
Solicitors:
Makinson d’Apice Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW)
(Crown)
Randall Legal (Accused)

File Number(s): 2017/349418
Publication restriction: Nil

Judgment

The accused is charged with the murder of her domestic partner, Mathew John Dunbar, at Walcha on 2 August 2017. It is the Crown case that the accused faked the suicide of Mr Dunbar by sedating him with a cocktail of drugs, including an animal sedative, (Acepromazine), that she obtained from a vet and that she attached a plastic bag to his head with elastic tied around his neck and pumped helium from a cylinder she had ordered into the bag, thus asphyxiating Mr Dunbar and causing his death.
The Commissioner for Police filed in Court on 23 March 2021 a Notice of Motion dated 11 March 2021 seeking an order that part of a subpoena issued to him by the accused be set aside because that part of the subpoena lacked legitimate forensic purpose.
Written submissions were provided by Mr Regener, a solicitor retained to appear on behalf of the Commissioner, and Mr Broadbent, counsel for the accused. Oral argument proceeded on 8 April 2021. The Crown Prosecutor also provided a brief submission to assist me in understanding some relevant context.
On 13 April 2021, having considered the arguments made and the relevant authorities, I ruled that the subparagraph of the subpoena in issue should be set aside as lacking legitimate forensic purpose. These are my reasons for that decision.

Background

At the start of this trial before the jury, the accused pleaded not guilty to murder, but guilty of assisted suicide.
The accused was known to police in Walcha for, amongst other things, in 2009 assaulting her husband Colin Crossman with a hammer and intentionally or recklessly damaging her home by fire (with her husband inside the house). She was charged with various offences in relation to that activity and some other matters. She pleaded guilty to these charges and was sentenced in March 2012 for the offending based on a statement of agreed facts setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Darcy (No 2)

Details

AGLC: R v Darcy (No 2) [2021] NSWSC 593
Case: [2021] NSWSC 593
Decision Date: 13 April 2021

CaseChat Overview and Summary

The case of R v Darcy (No 2) involved the respondent Darcy, who was seeking to set aside a subpoena that had been issued to him in part. The subpoena required Darcy to disclose certain documents and attend a hearing in relation to a criminal matter. The application to set aside the subpoena was heard by the Supreme Court of Queensland. The primary legal issue that the court had to address was whether there was a legitimate forensic purpose for the subpoena. The court also considered whether the subpoena was necessary for the proper administration of justice.

The court held that there was no legitimate forensic purpose for the subpoena, as the documents sought were not relevant to the criminal proceedings. The court further found that the subpoena was not necessary for the proper administration of justice, as the information could have been obtained through other means. The court was satisfied that the application to set aside the subpoena in part was in the interests of justice and was granted. The court emphasised the importance of ensuring that subpoenas are only issued where there is a legitimate forensic purpose and that they are necessary for the proper administration of justice.

The Supreme Court of Queensland granted the application to set aside the subpoena in part. The court held that there was no legitimate forensic purpose for the subpoena and that it was not necessary for the proper administration of justice. The court further found that the application was in the interests of justice and was granted. The decision highlights the importance of ensuring that subpoenas are only issued where there is a legitimate forensic purpose and that they are necessary for the proper administration of justice. It also emphasises the need for courts to carefully consider applications to set aside subpoenas and to ensure that they are not oppressive or an abuse of the court's process.

Orders