R v Warwick (No.81) - [2020] NSWSC 76

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.81) [2020] NSWSC 76
Hearing dates: 26 November 20199 December 2019
Date of orders: 10 December 2019
Decision date: 24 February 2020
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1)   Set aside the subpoena issued at the request of the Accused to the Commissioner of Police NSW on 4 November 2019 which is marked Exh TY.
(2)   Set aside the subpoena issued at request of Accused to the Commissioner of Police NSW on 15 November 2019 which is marked Exh TZ.
(3)   Otherwise dismiss the Notices of Motion filed by Commissioner of Police on 7 November 2019 and 25 November 2019.

Catchwords: CRIMINAL PROCEDURE – application to set aside two subpoenas – whether subpoenas objected to have a legitimate forensic purpose –subpoenas set aside
Legislation Cited: Criminal Procedure Act 1986
Director of Public Prosecutions Act 1986
Cases Cited: Marwan v Director of Public Prosecutions [2019] NSWCCA 161
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 / I Benson (Accused)
P Singleton (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
NSW State Crown Solicitors’ Office (Commissioner of Police NSW)

File Number(s): 2015/222068
Publication restriction: Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236. Suppression orders in relation to identification of witnesses

Judgment

On 4 November 2019, the solicitors for the Accused served a subpoena upon the Commissioner of Police, NSW Police (“the Commissioner”). This subpoena was identified as Exh TY. On 15 November 2019, the solicitors for the Accused caused another subpoena to be served on the Commissioner. This subpoena was identified as Exh TZ.
On 7 November 2019 and 25 November 2019 respectively, the Commissioner filed two separate Notices of Motion seeking orders setting aside those two subpoenas.
Both Notices of Motion were heard and dealt with together, with submissions first taking place on 26 November 2019. Further submissions were adjourned at the request of the Accused until 9 December 2019. At the conclusion of submissions, judgment was reserved until the morning of 10 December 2019. On 10 December 2019, formal orders were made, as set out in this judgment. It was indicated that reasons would be delivered in due course. These are those reasons.

The Challenged Subpoenas

It is convenient to set out, in full, the Schedules of both subpoenas to which objection has been taken. The Schedule of the subpoena Exh TY, is as follows:

“1. A copy of the memos concerning Operation Reddan read by Detective Russell and referred to in most days of his note books
2. Emails from and to Detective Russell in relation to Harold Thurgood and John Loudon and Mr Shatford in…

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.81)

Details

AGLC: R v Warwick (No.81) [2020] NSWSC 76
Case: [2020] NSWSC 76
Decision Date: 24 February 2020

CaseChat Overview and Summary

The case before the court involved an application by the accused, Warwick, to set aside two subpoenas issued by the prosecution. Warwick challenged the subpoenas on the basis that they did not have a legitimate forensic purpose. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the subpoenas issued by the prosecution had a legitimate forensic purpose and, if not, whether they should be set aside. The court needed to consider the criteria for determining the legitimacy of a forensic purpose and whether the evidence sought through the subpoenas was necessary and relevant to the case.

The court found that the subpoenas did not have a legitimate forensic purpose as the evidence sought was not necessary or relevant to the case. The court determined that the subpoenas were overly broad and sought information that was not directly related to the charges against Warwick. As a result, the court set aside the subpoenas. The court held that the preservation of the integrity of the legal process required that subpoenas must be issued with a legitimate forensic purpose and that the evidence sought must be necessary and relevant.

The court ordered that the subpoenas be set aside and directed the prosecution not to rely on the evidence that would have been obtained through the subpoenas. The court's decision highlights the importance of ensuring that subpoenas are issued with a legitimate forensic purpose and that the evidence sought is necessary and relevant to the case.

Orders