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Publication restriction:	Not to be published until further order of the Court.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

1. 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.

2. 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

3. 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.”

4. 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.

5. 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 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)    Bombing of JW Kingdom Hall - 21 July 1985 - murder Graham Wykes - 21 July 1985.

(viii)    The investigation of and inquiries concerning any other suspects in relation to the above.”

Commissioner’s Grounds

6. Counsel for the Commissioner submitted that paragraph 15 ought be set aside for, essentially, three reasons: first, that the terms of it indicate that the Accused was engaged on a fishing expedition; secondly, that, having regard to the terms of the paragraph, no legitimate forensic purpose had been shown; and thirdly, by reason of the lack of specificity of the names or other identifying material for most of the names in Annexure A and, having regard to the number of individuals, that it would be oppressive for the Commissioner to be required to search for and identify all of the named individuals and all of the documents associated with those named people.

Legal Principles

7. The legal principles which govern issuing subpoenas and setting them aside have been discussed by me in previous judgments in these proceedings: R v Warwick (No. 12) [2018] NSWSC 522; R v Warwick (No. 15) [2018] NSWSC 652; R v Warwick (No. 16) [2018] NSWSC 733. There is no need for me to repeat here all of these principles. I will apply those principles in the determination of this Notice of Motion.

8. What is clear, however, is that in order to sustain a valid subpoena, it is not sufficient to establish a legitimate forensic purpose by a demonstration of the proposition that the documents caught by a subpoena are or may be relevant; rather, it must be established that it is "on the cards" the documents will materially assist the case of the Accused: Alister v The Queen [1984] HCA 45; (1984) 154 CLR 404 at 414 per Gibbs CJ; Carroll v Attorney-General of New South Wales (1993) 70 A Crim R 162 at 181; R v Saleam [1999] NSWCCA 86 at [11].

Discernment

9. It is clear to me that paragraph 15 in its present form is not valid because, on its face, it bespeaks a fishing expedition.

10. However, it is also clear that there are particular identified individuals in the list of 53 people in Annexure A to the Schedule in respect of whom documents ought to be produced and other limitations by way of which this subpoena could properly be allowed.

11. In the first place, it seems to me that in order to avoid this subpoena being a fishing expedition, paragraph 15 must be limited to the seven Events which are the subject of the present Indictment before the Court. In that way, the range of searches to be undertaken for the relevant documents and their apparent relevance will be more readily identified. I did not understand, from anything put to me by the lawyers for the Accused, that this would be an inappropriate restriction on the paragraph.

12. Upon the assumption that such limitation is incorporated, the next issue which falls to be determined would be the question of legitimate forensic purpose.

13. The lawyers for the Accused submitted that each of the individuals identified were relevant because of the way in which they had been identified in the course of the Police investigation into the seven Events. The Accused submitted that the reasons for, or the method by which, any of these individuals had been eliminated from the investigation as being suspects for any of the crimes was a legitimate matter for the Accused to examine through production of the documents sought.

14. In considering these submissions it is convenient to adopt the same approach to the 53 individuals named in Annexure A as did Ms Ramsay in her affidavit of 30 May 2018.

15. The first two names on the list are Mr Abroo and Mr Mariti. These gentlemen have given statements to the Police and, although they are both now deceased, I have given leave, pursuant to s 65 of the Evidence Act 1995 for the Crown to adduce those statements. It is not unfair to say that each of them was considered to be a significant suspect as the person who perpetrated these events.

16. The Crown's case is that they will be eliminated as having carried out the events by virtue of evidence which the Police will give about their investigations. The Crown's case is they will also be eliminated by virtue of what they have told the Police from time to time. However, what is clear is that they were seriously considered as possible perpetrators of these crimes and the Crown will need to eliminate them as possible perpetrators in order to secure a conviction of the Accused. I am satisfied that there is a clear legitimate forensic purpose to the Accused having access to the records sought relating to those two gentlemen.

17. Mr Khaled Hamze or Hamzy is also named in Annexure A. The material before me satisfies me that he is said to have been associated with Mr Abroo's alleged perpetration of the Kingdom Hall bombing. By that I mean, to the extent that Mr Abroo is suspected of being the perpetrator of that bombing, it is said that Mr Hamze was the person who carried out or assisted in carrying out the bombing. It seems to me that he falls into the same category as Mr Abroo and Mr Mariti. There is a clear legitimate forensic purpose disclosed with respect to records relating to him. It follows that there is no reason to think that records in relation to those three people ought not be produced, subject to the question of oppression, to which I will come later in this judgment.

18. The third group of people named in Annexure A are 14 individuals, numbered 40-53 in the Annexure, whose names were derived from notes made of a meeting of Family Court judges which occurred on 12 July 1984, which was shortly after an explosion occurred at Justice Watson’s house (Event 5). The notes of the meeting are not a transcript of everything that was said, but they do record that various judges made suggestions about names of individuals.

19. The notes taken of that meeting do not present a central thread about the criterion by which the named individuals were identified; rather, it seems that judges were asked to make suggestions as to whom a suspect might possibly be. Some of the names suggested do not have any particular reason recorded in the notes as to why they had been suggested, nor do some of the names appear on the notes to be properly regarded as suspects. For example, of one individual, one judge nominated him and then added "I wouldn't suspect him of bombing". Another named individual seems to have been a witness in a case, but without anything more being attributed to him. Two individuals, whose names are included on Annexure A seem to be identified as being authors of books of some unspecified kind.

20. In the absence of any further evidence to implicate these named individuals, I am not persuaded that any legitimate forensic purpose has been shown for the production of the documents relating to them. I accept, as Ms Ramsay and Mr Conolly submitted, that weight should be given to their naming because it was the judges of the Family Court who were asked to name people who might be considered to be suspects, but to me all that demonstrates is that these individuals may or may not be relevant. It does not seem to me, on the basis of the notes which I have read and other material to which my attention has been drawn, to indicate a legitimate forensic purpose with respect to these named individuals. Accordingly, in any reformulated schedule to a subpoena, I would not be prepared to allow the names that are numbered 40-53 in Annexure A.

21. The fourth group of individuals who have been identified in Annexure A are people who are associated with an organisation known as the "Family Law Action Group" (“FLAG”). The members of that organisation were carefully considered at various stages in the course of the investigation. The organisation was one which expressed strong views about the operations of the Family Court, including its judges. The members of FLAG were seemingly individuals who had had personal experience of proceedings before the Family Court and who might have been thought either to have been disenchanted with their experience or else to have had views which might have led them to perpetrate one or more of the events with which this trial is concerned.

22. It is clear, from the material put before me, that some of the named people in Annexure A held significant positions within FLAG and were both more involved and more vocal than others who may have simply attended at one or more meetings. The material in the affidavit of Ms Ramsay of 30 May 2018, draws attention to particular features of some, but not all, of those named individuals as having said or done something, or reported something, which seems to me to differentiate them from others who may have attended meetings of that organisation.

23. Considering that material and other evidence to which I was taken, including the report of the Coroner into the Inquest into the death of Pearl Watson on 27 May 1987, I am satisfied that a legitimate forensic purpose has been shown in respect of some, but not all, of these people. I am satisfied that a legitimate forensic purpose has been shown in respect of the following individuals:

(1)   Mr Edwin Archbold (No. 3);

(2)   Mr Zvonko Franov (No. 4);

(3)   John Louden (No. 6);

(4)   Gordon Wiseman (No. 7);

(5)   Harold Albert Thurgood (No. 8);

(6)   William Pearson (No. 21); and

(7)   John Zengerer (No. 34).

24. I am not satisfied, with respect to the balance of the names of members of FLAG, that there has been demonstrated a legitimate forensic purpose with respect to them. Any amended Schedule to the subpoena ought not include these other names.

25. The final group of people named in Annexure A seem to be the names of individuals about whom questions were asked of Ms Judy Morier, the sister of Ms Blanchard, the former wife of the Accused, in an interview which took place On 24 April 1987. It is clear from the Record of Interview that Ms Morier was asked a question in which individuals were named. The context for her being asked was whether she had heard of any of those individuals. She was also shown three separate groups of photographs, two of which were mounted on a board, and asked whether she recognised any of the people in those photographs. With the exception of the Accused, she did not recognise or identify any of them. This final group of names in Annexure A derives from the people Ms Morier was asked about, and the names which of those pictured in the photographs shown to her.

26. Because she was asked about the names, or else shown photographs, of those individuals, it must be taken that at least at the time of the Record of Interview police regarded those people as worthy of being investigated to some extent. The extent of the investigation other than of the Accused is not clear. It may be, as one would expect in the course of a complex investigation, that police were taking the opportunity to double-check whether people who had been suggested to them as possible suspects were or were not known to other people who may be expected to know of them in the context of the investigation.

27. Because they may have been reasonably regarded as possible suspects worthy of some level of investigation, I am satisfied that they are, or may be, relevant. However, that is insufficient, in accordance with legal principle, to establish any legitimate forensic purpose.

28. With respect to the submissions from the lawyers for the Accused and acknowledging their criticism of the way in which the Police went about their investigation, there is no material before me which satisfies me that it is "on the cards" that any of the documents relating to individuals falling into this final group will, if produced, assist the case for the Accused in any way. I am not satisfied that the individuals falling into this category have been demonstrated to be people in respect of whom a legitimate forensic purpose exists.

29. The counsel for the Commissioner also submitted, based upon the evidence of Detective Russell, that it would be oppressive to the Commissioner to produce the range of documents sought. Whilst that may be so in respect of the full production of the broad range of documents with respect to all 53 of the people named, I am not satisfied that with respect to the limited schedule which will be permitted in this judgment and the restriction on the topic or subject matters of the production of the documents, oppression has been established.

30. In summary, I am not prepared to allow the subpoena in its current form, but I am prepared to allow it in a more limited form.

31. Accordingly, I will make the following orders:

1. I set aside paragraph 15 of the subpoena, Exhibit PTV, filed 4 May 2018.

2. I 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. I otherwise dismiss the Notice of Motion filed 21 May 2018.

******

Amendments

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

Decision last updated: 18 February 2020