R v Warwick (No.28) - [2018] NSWSC 812

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.28) [2018] NSWSC 812
Hearing dates: 30 May 2018
Date of orders: 30 May 2018
Decision date: 30 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Set aside paragraph 15 of the subpoena, Exhibit PTV, filed 4 May 2018.
(2) Allow in lieu the following paragraph 15:
“All records of investigations into those individuals specified below concerning the matters referred to in paragraph (a) above, including Police notebooks of the investigating officers:
Shoukat (Michael) Abroo, Silvano Franco Mariti, Edwin Colin Archbold, Zvonko Franov, Khalid Hamze (also known as Khalid Hamzy), John Louden, Gordon Wiseman, Harold Albert Thurgood, William Pearson and John Zengerer."
(3) Otherwise dismiss the Notice of Motion filed 21 May 2018.
Catchwords: CRIMINAL PROCEDURE – application to set aside one paragraph of a subpoena issued to Commissioner of NSW Police – where subpoena sought documents relating to 53 possible suspects – whether subpoena amounted to discovery and was a fishing expedition – where a legitimate forensic purpose existed in respect of 10 individuals – no oppression – paragraph set aside – amended version of paragraph permitted
Legislation Cited: Evidence Act 1995
Cases Cited: Alister v The Queen [1984] HCA 45; (1984) 154 CLR 404
Carroll v Attorney-General of New South Wales (1993) 70 A Crim R 162
R v Saleam [1999] NSWCCA 86
R v Warwick (No. 12) [2018] NSWSC 522
R v Warwick (No. 15) [2018] NSWSC 652
R v Warwick (No. 16) [2018] NSWSC 733
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)
P Singleton (Commissioner NSW Police)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
NSW Crown Solicitor’s Office (Commissioner NSW Police)

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Publication restriction: Not to be published until further order of the Court.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 4 May 2018, the solicitors for the Accused filed, and subsequently served, a subpoena addressed to the Commissioner of the New South Wales Police.
On 21 May 2018, the Commissioner, by Notice of Motion, sought an order that paragraph 15 of the Schedule to that subpoena be set aside.

The Subpoena – Exh PTV

Paragraph 15 of the subpoena reads as follows:

“All records of investigations into the suspects listed in Annexure A to this subpoena, including Police notebooks of the investigating Police officers.”

Annexure A to the Schedule to the subpoena named 53 individuals. Eight of those individuals were only identified by a single name, apparently a surname.
The subpoena includes a paragraph in the following form which was not referred to in paragraph 15:

“(a)   In this subpoena reference to the matters referred to as paragraph (a) is reference to the following:
(i)   Stephen Blanchard murder - 22-27 February 1980.
(ii)    Judge Opas murder, 23 June 1980.
(iii)    Attempted…

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.28)

Details

AGLC: R v Warwick (No.28) [2018] NSWSC 812
Case: [2018] NSWSC 812
Decision Date: 30 May 2018

CaseChat Overview and Summary

The respondents applied to set aside one paragraph of a subpoena issued to the Commissioner of the New South Wales Police by the appellant, who was charged with various offences under the Crimes Act 1900. The subpoena sought documents relating to 53 possible suspects, which the respondents argued amounted to discovery and was a fishing expedition. The primary issue for the court was whether the subpoena was valid, considering the potential for discovery and whether it constituted a fishing expedition. The court also needed to determine if a legitimate forensic purpose existed in relation to the 10 individuals mentioned in the subpoena.

The court found that the subpoena was valid as it did not amount to discovery. The court reasoned that the requirement for documents was not a fishing expedition, as there was a legitimate forensic purpose in relation to 10 individuals. The court also noted that the respondents were not oppressed by the subpoena, as they had sufficient information to identify the documents required. The court set aside the paragraph in question but allowed for an amended version of the paragraph to be issued, which would be limited to the 10 individuals with a legitimate forensic purpose.

The court's decision to set aside the paragraph and permit an amended version of the paragraph was based on the need to balance the rights of the respondents with the need for the appellant to obtain relevant information. The court found that the subpoena did not amount to discovery, and there was a legitimate forensic purpose in relation to the 10 individuals mentioned in the subpoena. The court also noted that the respondents were not oppressed by the subpoena, as they had sufficient information to identify the documents required.

The court's final order was to set aside the paragraph in question and permit an amended version of the paragraph to be issued, which would be limited to the 10 individuals with a legitimate forensic purpose. This decision ensures that the rights of the respondents are protected, while also allowing the appellant to obtain relevant information for their case.

Orders