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

1. 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.

2. At the time of making the orders, I indicated that I would give reasons in due course.

3. These are those reasons.

4. In R v Warwick (No.2) [2017] NSWSC 1225, between [7] and [96], I set out the factual detail of the Indictment which the Accused faces, and the Crown case statements which set out the case that the Crown intends to prove. Those facts and descriptions remain current and accurately reflect the Crown case.

5. It is appropriate to keep in mind that the Accused is facing charges about events which occurred between 33 and 38 years ago, and which are of the most serious kind. The Accused has indicated throughout the interlocutory proceedings in this Court that he does not put in issue that each of the seven Events occurred, nor that offences of the kind set out in the Indictment were committed. The Accused at all times has denied being the perpetrator of these offences, or being in any way involved in them. He denies that he is in any way responsible for any of these Events.

6. The subpoena issued to the Commissioner is lengthy and broad-ranging.

7. Upon the return of the subpoena, being Exh PTN, counsel for the Commissioner indicated that some parts of the Schedule to the subpoena, but not all of it, were objected to and filed a Motion seeking to set those parts of the Schedule to the subpoena aside.

8. Accordingly, the Court was called upon only to determine whether a relatively small number of paragraphs in the Schedule ought to be set aside.

9. For the purpose of this judgment, it is convenient to set out those parts of the subpoena that were the subject of the objections.

“SCHEDULE

The documents or things you must produce are as follows (without limiting the generality of the meaning of the words documents or things, where those words appear in this notice they include letters, correspondence, emails, facsimiles, file notes, memoranda, accounting records, statements, order forms, invoices, receipts, records, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, authorities, consents, and anything from which sounds, images or writings can be reproduced with or without the aid of anything else):

(a)   in this subpoena reference to the matters referred to as paragraph (a) is reference to the following:

(i)   Stephen Blanchard murder – 22 to 27 February 1980

(ii)   Judge Opas murder – 23 June 1980

(iii)   Attempted murder – Judge Gee – 6 March 1984

(iv)   Bombing of Family Court, Parramatta – 15 April 1984

(v)   Murder Pearl Watson and attempted murder Judge Watson – 4 July 1984

(vi)   Attempted murder of Garry Watts – 10 February 1985

(vii)   Murder Graham Wykes – 21 July 1985

(ix)   The investigation of and inquiries concerning other suspects in relation to the above

(b) In this subpoena reference to the Eastman Inquiry is reference to the hearing and Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester leading to the submission of the Report to the Registrar of the Supreme Court of the Australian Capital Territory pursuant to section 428 of the Crimes Act 1900 (ACT).

1.   This Subpoena.

2.   All records of complaints made against, and allegations concerning the work of, and disciplinary proceedings, alleged impropriety, breach of procedural instructions, deviation from laid down procedures, misconduct, fitness for work of

a)   Detective Woods

b)   Detective Gersbach

c)   Detective Robert King

b)   Detective Heffernan

(c)   Detective Constable

(d)   Detective Ratjens

(e)   Detective Julia Bradley

(f)   Detective Byrnes

(g)   Detective Myers

(h)   Sergeant Donnelly

(i)   Jessie Sheather

(j)   Senior Constable John Kassis

a)   Detective M B Matthews, Joint Bob Task Force

b)   Detective Senior Constable Stone

c)   Robert Collins Barns

3.   All records of the State Crime Command’s Unsolved Homicide Team, any other entity of similar purpose, in both NSW and each other State and Federally; and of the Joint Federal State Bomb Task Force; in relation to the matters and incidents referred to at paragraph (a) above.

…

7.   All records of surveillance of any other suspect in relation to any one of the events and incidents referred to in paragraph (a) above.

8.   …

9.   All communications with any person and expert including with experts in Australia and overseas in relation to DNA, Ballistics, and explosives, arising from or referring to the incidents referred to in paragraph (a) above.

…

15.   All records, documents, files, investigations, statements, records of interview, tapes, correspondences concerning the matters referred to at paragraph (a) above including:

●   All reports to NSW Crime Stoppers;

●   All communications between Victorian Police, the Australian Federal Police, the NSW Police, and the Office of the DPP in NSW and the Federal Office of the DPP, at all times to date;

●   All anonymous reports;

●   All reports to the Unsolved Crime Squad including all investigations and statements;

●   All reports to the NSW Bomb Squad, including all investigations, statements, recordings, note books;

●   Reports by members of the public or others concerning the above matters, including in relation to suspects;

●   All communications between the Australian Federal Police, NSW Police, the Department of Defence, concerning the matters referred to in paragraph (a) above.

15.   All communications between NSW Police, and with The Australian Federal Police, Victorian Police, the Federal DPP, the Victorian DPP and the NSW DPP or between NSW Police and any one of those entities in relation to the events, or any one of them referred to in paragraph (a) above.

…

26.   All batteries examined by the Crown and all reports and notes relating to batteries examined and held by the Crown and the Police.

…

34.   All records of allegations made against Detective Kevin Woods, by Carroll and Brian, including Woods’ statement, tendered to the Coronial enquiry, and including the tape of the conversation between Carrol and Brian concerning Woods, and all other records relating to Carrol and Brian.

…

36.   All records in relation to a person identified as Stolz being a person identified by Woods at the Coronial Enquiry in reference to a conversation with Sergeant Donnelly and John Carrol and Terry Brian.” (sic)

Legal Principles

10. The legal principles with respect to the setting aside of a subpoena or a part of it are well known. In dealing with two previous subpoenas at the same time as I dealt with this subpoena, I have attempted to set out those principles in a convenient, but summary, form: see R v Warwick (No.12) [2018] NSWSC 522 at [28]-[35]; R v Warwick (No.15) [2018] NSWSC 652 at [6]-[8].

11. It is unnecessary to repeat those paragraphs here. Those parts of those two judgments incorporate the principles which are applicable here, and which I will apply.

Discernment

Schedule

12. The first thing to note is that the description used at the commencement of the schedule with respect to what is required to be searched for and produced is very broad. It is not unfair to say that the description of the words “documents or things” require the identification of every document, however described, relevant to the subject matter identified.

13. As well, the paragraphs objected to do not contain any restricted date range.

14. These two comments provide an important context for understanding and determining the objections which are set out below.

15. Although it is clear that the Events, the subject of the Indictment, occurred a considerable time ago, that does not excuse the need for precision in the drafting of a subpoena, nor the need to specify an appropriate period in which documents are sought.

16. It is appropriate to consider each of the parts of the Schedule to the subpoena separately.

Paragraph 2

17. This paragraph relates to records being sought with respect to complaints made against a series of identified Police officers and an expert witness.

18. The terms of paragraph 2 contain expressions which are vague and uncertain. Expressions such as “alleged impropriety” or “deviation from laid down procedures” suggest that a recipient would need to make a value judgment as to whether in considering the contents of a document to determine if it was caught by the subpoena, an impropriety was alleged or whether there had been some “deviation” from laid down procedures, wherever these procedures might be found and in whatever form over an undefined time period.

19. But, more importantly, the subject matter of the paragraph does not suggest, on its face, any legitimate forensic purpose for the Accused to have access to such records. Given that the introductory words in the paragraph before the names are specified are so broad and vague, it would be hard to identify a legitimate forensic purpose. Notwithstanding the submissions of Ms Ramsay for the Accused, I am not satisfied that any such purpose exists.

20. At best, with respect to this paragraph, the Accused is attempting to find out, from all of the employment records of the named individuals who were employees of the Commissioner of Police, whether there has ever been any complaint of the kind described and, if so, what it was and what the outcome was. This is a clear example of a fishing expedition in which the Accused is seeking to identify the existence of any documents which may contain something that might assist him in his defence of the proceedings, either by permitting an attack to be made on the Crown case, or by providing evidence supporting him. The same considerations apply to Mr Barnes.

21. In the course of submissions, Ms Ramsay for the Accused sought leave to reformulate the introductory words of paragraph 2 of the Schedule to the subpoena to call for the following documents:

“Records of NSW Police concerning complaints of dishonesty, verballing, concoction of evidence, bribery, mishandling of seized items, placing items at the scene of a crime or place of search, and inappropriate relationships with informers.”

of the named individual police officers.

22. The descriptions of the content of any complaint files are vague, uncertain and expressed by reference to at least one colloquial expression “verballing”. These words do not cure any of the defects of the earlier wording. These words are equally demonstrative of a fishing expedition. Because I formed that view, I declined to allow this proposed amendment.

23. For these reasons this paragraph was set aside.

Paragraph 3

24. It is apparent from the terms of paragraph 3 that the Accused is seeking all documents held by the Unsolved Homicide Team, a reasonable description of a unit within the NSW Police Force, and “any other entity of similar purpose” - an ill-defined description of any other body - regardless of whether the documents might be held in NSW or anywhere else in Australia. As well, the Accused is seeking all documents held by an earlier investigating body which has been referred to as the “Joint Federal and State Bomb Task Force”.

25. It is apparent from other material before the Court that, for the purpose of the investigation into the Events, the Commonwealth Government and the NSW Government jointly set up a task force whose purpose it was to investigate all of the crimes.

26. The evidence does not reveal whether that Task Force was housed in NSW Police premises, or in some Commonwealth or other purpose-retained offices. The evidence does not reveal where the records of that Task Force are located, or in whose archive they have been deposited. The evidence does not reveal in whose possession, power or control these documents reside.

27. This paragraph of the subpoena is clearly a fishing expedition. It seeks all records, regardless of their identity, purpose or content held by the units described above, at any time so long as they relate to the seven principal Events.

28. A subpoena asking a body such as the Police Force to produce all records that they have in relation to the Events the subject of the charges is so wide that it easily merits the description of a fishing expedition. The Accused is hoping on examination of such documents, if produced, to find something which may assist him.

29. For these reasons this paragraph was set aside.

Paragraph 7

30. This paragraph seeks records of surveillance of “any other suspect in relation to any one of the events”.

31. The terms of this paragraph of the Schedule to the subpoena do not specify when the surveillance may have taken place nor by whom the surveillance would have been undertaken. For example, it does not seek records made by officers of the NSW Police Force. As well, the fundamental difficulty is that the paragraph requires the recipient to decide for themselves who might be regarded as a suspect with respect to the Events in question.

32. No doubt, there are names provided to any investigating Police group, particularly when reviewing a broad range of offences such as here. Investigating Police were dealing with a large number of individuals who, for one reason or another, may at some point in respect of one or other of the Events, be considered to be worth investigation to some extent. One could argue that such people would fall within the description used of “suspects”. But, the difficulty is, if upon any investigation, including a relatively low level one, the individual is found to have an alibi for the events or, alternatively, is able to promptly demonstrate to the investigators that they were not involved, then it might be entirely reasonable for the investigators to form the view that the person, whilst they may have been worthy of cursory investigation, is not to be validly regarded as a suspect.

33. The paragraph here being considered does not identify, or help to identify, any nuances around the term “suspect”. The term is so broad as to clearly demonstrate that the paragraph constitutes a fishing expedition.

34. By the terms of this paragraph, what the Accused has attempted to find out is whether there is anyone else who might have been at some unspecified time considered to be a suspect, and of whom there is surveillance, at some unspecified time, which surveillance might show something which may implicate that person in the commission of one or more of the offences.

35. The broad terms of this paragraph constitute a fishing expedition and no legitimate forensic purpose is disclosed.

36. This paragraph will be set aside.

Paragraph 15 (first occurring)

37. The second bullet point of the paragraph seeks the production of all communications between various Police forces and officers of the Director of Public Prosecutions at all times, provided only that those communications refer to the seven Events, or persons suspected of committing those offences.

38. It is apparent from a reading of the introduction to paragraph 15, and the second bullet point, that the Accused is engaged on a fishing expedition.

39. He seeks to identify whether any such documents exist and, if so, whether they may be relevant and whether they might assist in his defence.

40. Given the length of time over which correspondence is likely to have taken place, this portion of paragraph 15 can only be properly regarded as a fishing expedition.

41. The Accused did not articulate what legitimate forensic purpose there was for this paragraph, other than to submit that such correspondence may disclose relevant, and potentially valuable, information. Such a description is insufficient in the circumstances which exist here.

42. For that reason, this part of that paragraph was set aside.

Paragraph 15 (second occurring)

43. This paragraph replicates the bullet point referred to in the paragraphs above, except that it expands the nominated bodies with whom correspondence may exist to include the Victorian Director of Public Prosecutions.

44. In all other respects this paragraph is the same as the paragraph to which reference has just been made.

45. For the same reasons as those expressed in respect of that paragraph, this paragraph is a fishing expedition without any legitimate forensic purpose and ought be set aside.

Paragraphs 34 and 36

46. These paragraphs relate to a specific incident which is alleged to have occurred involving improper conduct by the now retired Detective Kevin Woods during the course of a Coronial inquiry.

47. The evidence before this Court satisfies me that the allegations against Mr Woods were a fabrication, were accepted as such, and were withdrawn and not proceeded with. In addition, the person making the allegations was convicted of a criminal offence and sentenced to a term of imprisonment for making such false allegations.

48. In those circumstances, namely of a false complaint against Mr Woods, there is no legitimate purpose demonstrated as to why the Accused ought have access to those records.

49. They could only possibly be relevant to the credibility of Mr Woods. In light of the material in evidence before the Court, they would not have any relevance.

50. Accordingly, the Accused cannot demonstrate a legitimate forensic purpose for these documents.

51. It is for this reason that these paragraphs were ordered to be set aside.

Balance of Schedule

52. In respect of paragraphs 2, 9 and 26, the orders made reflect the debate which occurred and the concessions made by the parties in the course of that debate.

52. As the concessions were, in effect, agreed to, or else no submissions made in opposition to them, it is appropriate to make those orders expressed in the way they were for those identified paragraphs.

Summary

54. These are the reasons for making the orders with respect to the subpoena addressed to the Commissioner of NSW Police.

55. Since it was unnecessary to set aside the whole of the subpoena, that subpoena has returned before the Court from time to time since the orders were first made.

56. Nothing further has occurred which has impacted upon these reasons or the decisions which were earlier made.

Orders

57. I make the following orders:

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.

**********

Amendments

18 February 2020 - Non publication order lifted on 14 February 2020.

Decision last updated: 18 February 2020