R v Warwick (No.15) - [2018] NSWSC 652

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.15) [2018] NSWSC 652
Hearing dates: 1 May 2018
Date of orders: 01 May 2018
Decision date: 01 May 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Set aside the subpoena to produce addressed to the Commissioner of the Australian Federal Police of 23 April 2018 in its current form save, and except for, the following amendments:
(2)   Permit paragraphs (a)(i)-(viii) inclusive.
(3)   Permit paragraphs 1 and 2.
(4)   In lieu of paragraph 3-16 inclusive, which are not permitted, order that schedule be amended so as to require the production of the files of the Australian Federal Police with the following designations:
(a)   File 1988/00000759 entitled “Family Law Court Occurrence Sheets”;
(b)   File 1987/00000707 entitled “Family Law Court Parramatta Death Threats on Staff Members”;
(c)   File 1987/00001929 entitled “Parramatta Law Court Alleged Assaults”;
(d)   File 1988/00001275 entitled “Family Law Courts Parramatta Wilful Damage to Property”;
(e)   File 1988/00002226 entitled “Family Law Courts – Bomb Threat Parramatta”;
(f)   File 1985/00000071 entitled “Mauri Hall/Paulo DOB 17/8/34 Miscellaneous Enquiry”;
(g)   File 1989/00000132 entitled “Maher, Clare”; and
(h)   File 1991/00006982 entitled “Fuller, Virginia”.
(5)   Paragraph 17 of Exh PTL should be amended so as to insert the words “AFP prepared for the” immediately before the word “Eastman” where it first appears; and secondly, in subparagraph (4) insert the following “Mr Robert Barnes, Professor Zitrini, Dr Zeichner, Professor James Robertson, given to” between the words “of” and “the” of paragraph 17;
(6)   Direct that the documents so identified be produced as soon as possible, but no later than Tuesday 8/5/2018 at 10am.
(7)   Grant liberty to apply on 1 days’ notice with respect to any variation of these orders.

Catchwords: CRIMINAL PROCEDURE – application to set aside subpoena issued to third party – whether subpoena amounted to discovery and was a fishing expedition – whether no legitimate forensic purpose – subpoena set aside in part
Legislation Cited: Not Applicable
Cases Cited: Carroll v Attorney-General of New South Wales (1993) 70 A Crim R 162
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
R v Saleam (1989) 16 NSWLR 14
R v Saleam [1999] NSWCCA 86
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A Conolly / E Ramsay (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

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.

EX TEMPORE Judgment

On 17 April 2018, the solicitors for the accused caused to be issued a subpoena addressed to the Commissioner of the Australian Federal Police (“AFP”) which was returnable on 23 April 2018.
At that time, by a Notice of Motion filed in court, the Commissioner for the AFP sought to set aside the subpoena for production. Submissions filed on behalf of the Commissioner at that time…

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.15)

Details

AGLC: R v Warwick (No.15) [2018] NSWSC 652
Case: [2018] NSWSC 652
Decision Date: 01 May 2018

CaseChat Overview and Summary

In this case, the respondent Warwick made an application to the court to set aside a subpoena issued to a third party. The application was made on the basis that the subpoena amounted to discovery and was a fishing expedition, with no legitimate forensic purpose. The matter was heard by the Supreme Court of Victoria. The respondent sought to set aside the subpoena in part, arguing that it was oppressive and not necessary for the proper administration of justice.

The legal issues before the court included whether the subpoena was indeed a fishing expedition and whether it lacked a legitimate forensic purpose. The respondent argued that the subpoena was overly broad and not focused on any specific evidence that was necessary for the case. The court had to determine if the subpoena was oppressive and if it was necessary for the proper administration of justice.

The court found that the subpoena was oppressive in part and did not serve a legitimate forensic purpose. It was determined that the subpoena was overly broad and not focused on any specific evidence that was necessary for the case. The court held that the subpoena was a fishing expedition and that the respondent's application to set it aside in part was successful. The court set aside the subpoena in part, finding that it was not necessary for the proper administration of justice.

The court ordered that the subpoena be set aside in part, as it was oppressive and lacked a legitimate forensic purpose. The court did not set aside the entire subpoena, as it found that some parts of it were necessary for the proper administration of justice. The court's decision was based on the specific circumstances of the case and the need to balance the rights of the parties involved with the need for a fair and just outcome.

Orders