R v Warwick (No.16) - [2018] NSWSC 733

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.16) [2018] NSWSC 733
Hearing dates: 1 May 2018
Date of orders: 01 May 2018
Decision date: 01 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1)   With respect to paragraph 2, 3, 7, the second bullet point of paragraph 15 where it first occurs; paragraph 15 where it next occurs and paragraphs 34 and 36, I uphold the Motion of the Commissioner of Police (NSW) and set those paragraphs aside.
(2)   Note that in lieu of the existing paragraph 2, the Accused seeks to amend it so as to delete the description of the records being sought and to substitute the following words: “all records of NSW Police concerning complaints of dishonesty, verballing, concoction of evidence, bribery, mishandling of seized items, planting of items at a scene of a crime or at the scene of a search and inappropriate relationship with informants with respect to the individuals named in the existing paragraph 2” – I refuse to permit such amendment.
(3)   Note however that the counsel for the NSW Police agrees that records relating to a sustained complaint with respect to Det. Woods and Det. Gersbach, being a complaint sustained by the Ombudsman, will be produced.
(4)   Paragraph 9 is allowed with the exception the word “person and” on the first line and insertion of the amendment “directly or indirectly” after the word “expert”.
(5)   Paragraph 26 is permitted, subject to deletion of the words “the Crown” where appearing on two occasions and insertion of the words “the Police” in lieu thereof.

Catchwords: CRIMINAL PROCEDURE – application to set aside subpoena issued to Commissioner of NSW Police – where subpoena was lengthy and broad in scope –whether subpoena amounted to discovery and was a fishing expedition – whether paragraphs objected to had legitimate forensic purpose – subpoena set aside in part – other paragraphs permitted after amendments
Legislation Cited: Not Applicable
Cases Cited: R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.12) [2018] NSWSC 522
R v Warwick (No.15) [2018] NSWSC 652
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 / 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 1 May 2018, I made orders with respect to a subpoena addressed to the Commissioner of the NSW Police (“the Commissioner”), which was filed by the Accused on 17 April 2018, and which was marked Exh PTN.
At the time of making the orders, I indicated that I would give reasons in due course.
These are those reasons.
In R v Warwick (No.2) [2017] NSWSC 1225, between [7] and [96], I set out the factual detail of the…

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.16)

Details

AGLC: R v Warwick (No.16) [2018] NSWSC 733
Case: [2018] NSWSC 733
Decision Date: 01 May 2018

CaseChat Overview and Summary

The case of R v Warwick (No.16) involved an application to set aside a subpoena issued to the Commissioner of the New South Wales Police by the prosecution. The defendant, Warwick, objected to the subpoena on the grounds that it was excessively broad and amounted to discovery, as well as being a fishing expedition. The primary focus of the dispute was whether certain paragraphs of the subpoena had a legitimate forensic purpose or if they exceeded the bounds of proper judicial process.

The court was required to determine whether the subpoena was too wide-ranging and if it served a legitimate forensic purpose. This included examining whether the subpoena's broad scope constituted an abuse of process or if it was justified for the purposes of the investigation. The court had to balance the need for thorough investigation with the rights of the defendant to avoid unnecessary intrusion into their private affairs.

The court found that some paragraphs of the subpoena were indeed overly broad and amounted to a fishing expedition, lacking a legitimate forensic purpose. Consequently, these paragraphs were set aside. However, the court permitted other paragraphs of the subpoena to stand, provided they were amended to narrow their scope. This decision balanced the need for effective investigation with the protection of the defendant's rights against unreasonable searches and seizures. The court's ruling provided clarity on the permissible scope of subpoenas in criminal proceedings, ensuring that they serve a legitimate forensic purpose without unduly encroaching on the rights of the accused.

Orders