R v Warwick (No.29) - [2018] NSWSC 901

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.29) [2018] NSWSC 901
Hearing dates: 14 and 15 June 2018
Date of orders: 18 June 2018
Decision date: 18 June 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Set aside paragraphs 1, 3, 4, 10, 15, 16, 17 and 18 of the Schedule to the Subpoena filed by the Accused on 1 June 2018 (being Exh TA);
(2)   Set aside paragraph 2 of the Schedule to Exh TA except (a) and (c), and then only so far as those notebooks refer to enquiries or investigations made with respect to:
(i)   Timothy BRISTOW;
(ii)   Reginald David SHATFORD; and/or
(iii)   Graham Russell STOLZ
and only insofar as those notebooks refer to the matters set out in Exh TC.
(3)   Set aside paragraph 9 of the Schedule to Exh TA except as follows:
(i)   all recordings, notebook entries, duty book entries and the documents created during the investigation into the matters in paragraph (a) of the Schedule to Exh TA of, including, and referring to, OWEN MUHN; and
(ii)   any and all statements made by Khaled Hamze (also known as Khaled Hamzy) prior to 3 January 2018, together with all notebook or duty book entries relating to the obtaining, variation and finalisation of any such statement.
(4)   Otherwise dismiss the Notice of Motion filed by the Commissioner of the NSW Police on 12 June 2018, seeking orders with respect to Exh TA.

Catchwords: CRIMINAL PROCEDURE – application to set aside paragraphs of a subpoena issued to Commissioner of NSW Police – where subpoena sought historical Police documents including notebooks and operating manuals – where subpoena also sought search warrant records and interview records – whether subpoena amounted to discovery and was a fishing expedition – where a legitimate forensic purpose existed only in respect of certain paragraphs – schedule to the subpoena set aside in part – balance of notice of motion dismissed
Legislation Cited: Listening Devices Act 1984 (NSW)
Cases Cited: Alister v R [1984] HCA 85; (1984) 154 CLR 404
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Carroll v Attorney-General for NSW (1993) 70 A Crim R
Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498
R v Saleam [1989] 16 NSWLR 14; (1989) 39 A Crim R 406
R v Saleam [1999] NSWCCA 86
R v Warwick (No.12) [2018] NSWSC 522
R v Warwick (No.16) [2018] NSWSC 733
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.28) [2018] NSWSC 812
Roads and Traffic Authority of NSW v Conolly [2003] NSWSC 327; (2003) 57 NSWLR 310
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
L Steuckradt (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…

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.29)

Details

AGLC: R v Warwick (No.29) [2018] NSWSC 901
Case: [2018] NSWSC 901
Decision Date: 18 June 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.29), the defendant, Warwick, sought to have certain paragraphs of a subpoena issued to the Commissioner of NSW Police set aside. The subpoena had been issued in the course of a criminal investigation and sought historical police documents, including notebooks and operating manuals, as well as search warrant records and interview records. The primary legal issue before the court was whether the subpoena amounted to an improper discovery or fishing expedition, and whether it was justified by a legitimate forensic purpose.

The court considered whether the subpoena's requests for documents and records were specific and relevant to the ongoing criminal investigation. It was noted that while a legitimate forensic purpose existed only in respect of certain paragraphs of the subpoena, other requests appeared to be overly broad and not narrowly tailored to the specific investigation. The court determined that the subpoena amounted to an improper fishing expedition in part, and set aside the schedule to the subpoena in those respects. However, the balance of the notice of motion was dismissed as the court found that the legitimate forensic purpose outweighed the potential for abuse in other respects.

In summary, the court granted Warwick's application to set aside certain paragraphs of the subpoena that were considered to be a fishing expedition, while dismissing the remainder of the notice of motion. This outcome ensured that the subpoena was narrowed to only those documents and records that were directly relevant and necessary to the ongoing criminal investigation.

Orders