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R v Warwick (No.12)

R v Warwick (No.12)

Case [2018] NSWSC 522 30 April 2018

Discovery & Disclosure

Abuse of Process

Interlocutory Orders

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.12) [2018] NSWSC 522
Hearing dates: 23 April 2018
Date of orders: 23 April 2018
Decision date: 30 April 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Set aside the subpoena addressed to the Watchtower Bible and Tract Society of Australia insofar as the Schedule contains paragraphs 2, 9, 15-17 (inclusive) and part of paragraph 21

Catchwords: CRIMINAL PROCEDURE – application to set aside subpoena issued to third party – whether subpoena amounted to discovery and was a fishing expedition – whether six paragraphs objected to had no legitimate forensic purpose – subpoena set aside in part
Legislation Cited: Evidence Act 1995
Cases Cited: Alister v The Queen [1984] HCA 45; (1984) 154 CLR 404
Attorney General for New South Wales v Chidgey [2008] NSWCCA 65
Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
Carroll v Attorney-General for NSW (1993) 70 A Crim R 162
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Perish v R [2015] NSWCCA 98
R v Saleam (1989) 16 NSWLR 14
R v Saleam [1999] NSWCCA 86
R v Warwick (No.2) [2017] NSWSC 1225
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly (Accused)
R van Witsen (Watchtower Bible and Tract Society of Australia)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
V Toole, Solicitor (Watchtower Bible and Tract Society of Australia)

File Number(s): 2015/222068
Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.

Judgment

On 17 April 2018, the solicitor for the Accused caused a subpoena addressed to Mr Terrence O'Brien, the Director of the Watchtower Bible and Tract Society of Australia (“the Watchtower Society”) to be issued.
The subpoena was returnable before the Court on Monday 23 April 2018.
At that time the subpoena was answered by the solicitor for the Watchtower Society and a number of documents were produced which were contained on two discs. There was no objection to access to those documents.
However, the Watchtower Society objected to a number of paragraphs of the subpoena in whole, and to part of a further paragraph.
At the conclusion of the argument, the Court pronounced orders with respect to those objections and indicated that reasons would be published in due course. These are the reasons for the orders pronounced on 23 April 2018.

The Challenged Subpoena

It is convenient to set out those parts of the subpoena to which objection has been taken. They are as follows:

“1. …
2. All records of the public reproof, shunning, and disfellowship, removal and hearings before the Judicial Committee of any person during the period 1978 to 1986 with respect to Bethel, and the congregations in Casula, Lurnea and Campbelltown, Forster and the Central Coast, relating to the public reproof,…

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 Warwick (No.12)

Details

AGLC: R v Warwick (No.12) [2018] NSWSC 522
Case: [2018] NSWSC 522
Decision Date: 30 April 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.12), the respondent applied to set aside a subpoena issued to a third party in the context of a criminal proceeding against the applicant. The application was heard by the Supreme Court of Queensland, which was required to determine whether the subpoena constituted an unreasonable demand for discovery and whether six specific paragraphs of the subpoena had no legitimate forensic purpose. The subpoena, which sought the disclosure of documents from the third party, was contested on the basis that it was a fishing expedition and exceeded the scope of proper discovery in a criminal case.

The court examined whether the subpoena was an unreasonable demand for discovery, considering the principles of proportionality and relevance in criminal proceedings. It was noted that the subpoena sought a broad range of documents, including those that were unrelated to the charges against the applicant. The court also assessed whether the six paragraphs in question served any legitimate forensic purpose. It was argued that these paragraphs sought information that was not relevant to the charges and could potentially lead to the disclosure of privileged or irrelevant material. The court had to balance the need for disclosure in criminal proceedings with the protection of the rights of third parties and the prohibition against fishing expeditions.

The court found that certain aspects of the subpoena were indeed unreasonable and amounted to a fishing expedition. It held that the subpoena exceeded the scope of proper discovery in criminal cases, as it sought a wide array of documents without sufficient relevance to the charges. The six paragraphs objected to were set aside as they were deemed to have no legitimate forensic purpose and sought information that was not pertinent to the case. Consequently, the subpoena was set aside in part, reflecting the court's commitment to ensuring that discovery processes in criminal cases are fair and proportionate. The court's decision underscored the importance of balancing the rights of the accused with the need to prevent abuse of the discovery process.

Orders