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

1. 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.

2. On 7 November 2019 and 25 November 2019 respectively, the Commissioner filed two separate Notices of Motion seeking orders setting aside those two subpoenas.

3. 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

4. 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 relation to their evidence and their availability to give evidence as referred to in his note book in 2017

3.   Records of the conferences between Detective Heffernan and Justice Watts including records of the interview on 2 November 2017 between about 7:30am and up to 12 noon, and of the ‘liaison’ with HH Watts re: statement between about 12:45pm and 5pm on 16 November 2017, all emails with Justice Watts and his associate and the police, and records of ‘liaising’ with Justice Watts, in November 2017 and following

4.   Records of the conference with Phillipa Lynch and the ‘Discussed Reddan Trial’ on 21 November 2018 and other days.

5.   Records of the meeting between Detective Leggat, Detective Heffernan and Detective Russell at the meeting from about 2:30pm to 4pm on or about 21 November 2017

6.   A copy of the paper prepared by Detective Russell in relation to Operation Reddan for the Homicide Squad in November 2017

7.   Records of conferences, meetings and telephone calls and emails between Detective Russell and Kevin Woods, including on 24 November 2017 at which time Detective Woods received ‘Statement info’ on and after 21 November 2017 and at all other times including on 29 November 2017 and in December 2017 including on 10 December, 14 December, 20 December 2017 and records of having ‘liaised with’ others including on 9 January 2018 concerning the statement of Detective Woods

8.   Emails between Maria Hancock of Alldis solicitors at Hurstville re: Tall/ Hodgson" undertaken on and about 21 November 2017 at

9.   Notes and records of the meeting between Khaled Hamzy and Detective Russell on 2 January 2018 from 9:30am to 10:45am and on 3 January 2018 and at all other times including all reports and emails and memos and police note book records

10.   The records as to the location of Running Sheet 2 relating to the Kingdom Hall, and the date on which that running sheet was located and the circumstances leading to its disclosure to Legal Aid in or about 25 March 2019, including all emails, and memos

11.   Records of the investigations made by the police from 1990 to date in relation to the matters raised in Running Sheet 2 concerning the Kingdom Half Bombing, including all enquiries to locate the police referred to in the running sheet and to interview them concerning the matters raised in Running Sheet 2

12.   A copy of the tape of the call referred to in Running Sheet 2, received by police at 11:16am, and said to have been ‘taped’

13.   All records referred to in the Investigator's Note of Detective Nichols dated 2 August 2013 including the documents in the 3 boxes, identified in that Investigator's note, in their entirety

14.   The records of the meeting between the police including Detective Heffernan and officers from the FBI, including Legal Attache Tim O'Malley in 2016, and including Mark Whitworth on 28 April 2016 including all memos, notes, and records of that meeting and reports on that meeting, records of the provision of files to the FBI on or about 15 April 2016 and records of all conversations, and meetings and telephone calls and emails with the FBI or any person on behalf of the FBI

15.   Records of communications with Joy Wykes, Kevin Woods and Andrea Blanchard throughout the investigation, including records, notes and memos of communications by Detective Russell, by email, and telephone and in person, concerning Operation Reddan and the investigations and course of the hearing

16.   Emails between Detective Russell and a laboratory in NZ including but not limited to on or about 12 May 2016 concerning DNA and other matters relating to the matters currently before the court and in relation to Operation Reddan

17.   A copy of the presentation in written, audio and / audio visual format by Detective Russell at Goulburn Academy in or about May 2016 concerning Operation Reddan and a copy of all other presentations given by Detective Russell to the Goulburn Academy concerning Operation Reddan, including but not limited to the ‘presentation material’ collected by Detective Russell on 20 May 2016

18.   A copy of the Evidence Summary and Evidence Supplement, Weekly Synopsis and Progress Reports referred to by Detective Russell in his duty book in 2016 including all further updates of the evidence summary and evidence supplement and all progress reports for Operation Reddan at all times to date

19.   A copy of the FSG Presentation relating to Operation Reddan and a copy of the further presentation to the Goulburn Academy by Detective Russell in November 2016 and all presentations thereafter and a copy of the presentation to the National Cold Case Symposium in November 2016

20.   Records of the conference on 17 October 2016 between Detective Heffernan and ex- Detective King including all file notes, emails and memos concerning that meeting, and including records of all other meetings and telephone calls between Detective Heffernan and ex‑Detective King

21.   A copy of the report on Mariti prepared by or being prepared by Detective Russell in October 2016 and including the records of interviews with Richard Mariti at all times to date and records of interviews with and discussions with Julian Mariti as referred to in the notebook of Detective Russell in October 2016

22.   Copies of all drafts of statements of Detective Robert King prepared by Detective Russell as referred to in his duty book 8 November 2016, but not limited to amendments and drafts prepared on that day noting the continuing amendment of the statement of Detective King by Detective Russell

23.   Records, including file notes, memos, emails concerning meetings between Detective Heffernan and Kevin Wardock concerning explosives, including meetings on the central coast and including in 2016 and 2017

24.   Records of the documents shown to each of the witnesses who have been called in the Crown Case, prior to or at the time of preparation of the statement of the witness and prior to the witness giving evidence where those documents are not disclosed in the statement of the witness.

25.   This Subpoena.” (sic)

5. The Schedule to the subpoena Exh TZ sought production of the following items:

“1.   Records of the search warrants executed on 21 October 2015 and at all other times on the cell of Mr Warwick or any other person at Cessnock Gaol with respect to Operation Reddan.

2.   Records of the search warrants executed on 21 October 2015 on Karen Holdom as recorded in the duty book of Detective Russell on that date.

3.   Records of the meeting between Detective Russell and Detective Heffernan on 4 January 2016 with former fireman Michael Guymer, including all notes of the meeting and summaries of the discussion.

4.   Records of Detective Russell's enquiries concerning the cell mate of Mr Warwick undertaken in 2015, and the records of the assault of Mr Warwick referred to in the duty book of Detective Russell on or about the following day.

5.   Records of the investigations conducted by Detective Russell on or about 12 March 2015 into Mr Lock, Mr Fitzgerald and Mr Pinch.

6.   Records of the COPS enquiries undertaken by Detective Russell including on 10, 13, 17, and 18 March 2015 and at all other times as referred to in his duty book for the year 2014 to 2016.

7.   Records of the entries by Detective Russell on a daily basis as referred to in his Duty book, and described as ‘continued with e[@]gle.i’ and ‘attended to e[@]gle.i', including all file notes and entries entered by Detective Russell so far as those entries have not been disclosed to the defence during the proceedings.

8.   A copy of the records provided to and complied for Detective Woods by Detective Russell including on 5, 6 and 10 November 2015.

9.   Records of the Team Meetings of Operation Reddan, held for the whole days of 24 March 2015, 25 March 2015, 26 March 2015 and 30 March 2015, including all agenda, file notes, and meeting notes, and summaries of the meetings by any officer.

10.   The minutes of the meeting on 16 January 2015 and the agenda for that meeting and records of that meeting.

11.   Records of the meeting on 11 March 2015 including with reference to ‘Reddan Issue’ including the agenda and file note and entries in diaries.

12.   Notes and records of the meetings between Detective Russell and other detectives and Andrea Blanchard and Trudi Kennedy, including but not limited to the whole day meeting on 9 April 2015 as referred to in the duty book of Detective Russell, and the whole day of 30 September 2015 as referred to in the duty book of Detective Russell. All notes, memos, diagrams, file notes and other records of that meeting are requested for production.

13.   A copy of all documents, photographs emails and other records provided by Andrea Blanchard and Trudi Kennedy to the police during the period 2013 to date.

14.   Records of each of the Weekly Synopses prepared by Detective Russell including but not limited to 19 January 2015, 27 January 2015, 2 February 2015, 23 February 2015, 2 March 2015, 9 March 2015, 13 July 2015.

15.   Records of the material archived by Detective Russell including but not limited to the dates on 21 January 2015, and 22 November 2015.

16.   The diaries referred to by Detective Russell throughout his note books, including as referenced by Detective Russell in his duty book by entries including ‘attended to diaries’.

17.   The progress reports of Detective Russell prepared throughout the investigation of Operation Reddan including but not limited to 9 and 10 February 2015.

18.   The Evidence Summaries prepared by Detective Russell, as referred to in his duty book, including but not limited to 25 February, 26 May, 27 May, 28 May, 1 June and 2 June 2015.

19.   The explosives Summary drafted by Detective Russell as referred to in his duty book on 1 April, 2 April, 23 April and 5 May 2015.

20.   The records of the investigation into and operation concerning Owen Muhn, Criselda Muhn and Martin Muhn including file notes, memos, records, strategy notes, COPS searches, concerning Owen Muhn, Criselda Muhn and Martin Muhn, including but not limited to the file notes and memos and other records of the ‘Strategies’ discussed on 7 April 2015 as referred to in the duty book of Detective Russell, the discussion on 10 April 2015 with Detective Dowson and Detective Heffernan, the discussion on 14 May 2015 of the ‘Muhn Family’ and the ‘current situation’, the meetings on 18 May and 19 May, the enquiries and meetings concerning Martin Muhn on 22 and 25 May 2015, the presence of Detective Dowson and Detective Staples in Tasmania throughout the evening of 13 May 2015 to which Detective Russell refers in his duty book, the discussions of the Muhn ‘operation’ on 3 June 2015 as referred to in the duty book of Detective Russell, the conveyance by police of Owen Muhn and Criselda Muhn to the house of Martin Muhn on 6 June 2015, and the meeting of Detective Russell concerning ‘legal issues’ on 15 June 2015.

21.   The summary of the JW and Tall events by Detective Russell as referred to in his duty book on dates, including but not limited to 22 and 23 December 2014, 29 December 2014, 30 February 2015, 7 January and 8 January 2015.

22.   Each of the Evidence Summaries and Summary of Crimes referred to by Detective Russell throughout his duty books but including and not limited to 6 January 2014, 3 February 2014, 9 January 2015, 19 January 2015, 20 January 2015, 29 January 2015, 16 February 2015, 17 February 2015, 18 February 2015, 24 February 2015 and 7 May 2015. It is noted that there may be multiple versions of the evidence summaries and different evidence summaries. All of the evidence summaries drafted by Detective Russell are sought for production.

23.   The evidence summaries and summary of crimes, prepared by Detectives Heffernan, Detective Staples, Detective Dowson and Detective Chebl as part of Operation Reddan.

24.   Records of the meeting from about 8:30am to 12:30pm with Commissioner Scipione and Deputy Commissioner Kaid [sic – Kaldis] or as referred to in the duty book of Detective Russell in or about July 2015.

25.   Records of the conversation between Detective Russell and retired Detective Sgt Knight on 10 November 2015, concerning ‘US inquiry’ as referred to in the duty book of Detective Russell on 11 November 2015.

26.   Records, minutes notes and emails with. Detective Kevin Woods, relating to his statement and the documents provided to and by Detective Woods, including a copy of all records provided by former Detective Kevin Woods to the police during the period including but not limited to November 2015 to February 2016, including the records of the meeting from 9:00am to 12 noon with Detective Woods [sic – Russell] on or about 25 February 2016.

27.   A copy of the transcript of Mr Warwick and Mr Sievers referred to in the duty book of Detective Heffernan on 3 March 2016.

28.   The statement of Shane Burgess referred to in the duty book of Detective Chebl.

29.   The investigator's notes referred to in the note book of Detective Chebl.

30.   Records and notes of the meeting with Steve Doran and Detective Chebl in about March 2015 as recorded in the duty book of Detective Chebl including all emails between Steve Doran and police.

31.   The ‘books’ of the Jehovah's Witnesses referred to in the duty book of Detective Chebl including details of the referral or report of material to the child exploitation section of police.

32.   The records of the Hodge Inquiry concerning the Tall incident, including the enquiries of the mechanic at Northmead including but not as limited to the entries in the duty book of Detective Chebl on 23 and 24 September 2019 and including a copy of the COPS checks undertaken including on the address which has been redacted in the duty book of Detective Chebl.

33.   The records of the taking of statements from the members of the Best family, including by Detective Chebl including a copy of the requisitions or questions from which the Detective was working from when taking the statements, so far as that information has not previously been disclosed to the Defence.

34.   This Subpoena.” (sic)

Nature of Objection

6. The Commissioner objected to the production of documents in both subpoenas and sought to have them set aside on the basis that there is no legitimate forensic purpose demonstrated with respect to the documents and items referred to in the Schedules to both subpoenas.

7. The written submissions provided by the Commissioner refer to an earlier subpoena issued by the Accused on the Commissioner, which is dated 24 October 2019. Pursuant to that subpoena the Commissioner produced, in various tranches, many documents including the duty books of Detective Russell and other detectives spanning the period of their investigatory duties with the Unsolved Homicide Squad and Strike Force Reddan. Strike Force Reddan was comprised of those detectives who investigated the seven Events upon which the charges in the Indictment in these proceedings are based. In the course of describing the work of the Strike Force in evidence, the phrase “Operation Reddan” has been used. I do not think that anything of significance turns on which of these two different expressions is used.

8. In the two subpoenas in question, the Accused has referred to parts of the wealth of documents which the Commissioner has produced over several weeks, being the duty books and note books of the detectives of Strike Force Reddan. It is the Commissioner’s submission that the solicitors acting for the Accused have read through those books and used the information in them to draft the two challenged subpoenas. The Commissioner submitted that the solicitor for the Accused drafted their further calls for production on the grounds that certain documents may exist, and that the Accused wished to read them to see what (if anything) might be contained in them. It was therefore submitted by the Commissioner that the two subpoenas were not issued for any identifiable legitimate forensic purpose. Put differently, the Commissioner submits that the subpoenas are nothing short of a “fishing expedition”.

9. In her affidavit of 26 November 2019, Ms Ramsay confirmed that the documents sought in these two challenged subpoenas have been identified from reading the documents produced in answer to the 24 October 2019 subpoena.

Submissions by the Accused

10. The Accused relied on several arguments to support the production of the wide range of documents identified in the Schedule to the challenged subpoenas, all of which, it was submitted, related to the work of detectives in the investigation of the seven Events. Put generally, those arguments centred around the inadequacy of the police investigation. The details of those arguments are to be largely found in the affidavits of Ms Ramsay.

11. Ms Ramsay outlined several points which she submits are of “critical importance” to ensure a fair trial for the Accused. These points can be summarised as follows:

1. the witness statements tendered by the Crown in the trial usually contain reference to documents that the police showed a witness in the course of taking their statement. The Accused contends that for several witnesses, that list is incomplete. There is no record which has been served of the documents shown to each witness including those not referred to in statements, although such a record, it is said, must exist;

2. the evidence of Detective Russell, that he “rarely retained notes” during his interviewing of witnesses, is inconsistent with the evidence of some witnesses who described how police officers would write notes when they were being interviewed;

3. there are no records of interview with witnesses whose statements were taken after 2013. Post 2013, witness statements were produced in narrative form and do not include the questions asked by the police officers of the witnesses; and

4. the Crown tendered a number of running sheets during its case. In the 1980s, police would compile running sheets shortly after the investigation of a particular subject matter. Duty Books and notebooks maintained by detectives and other police, which would contain any notes that police officers may have relied upon in drafting those running sheets, ought to have been (but have not been) produced.

12. According to Ms Ramsay:

“42.   It is critical for any understanding of the police investigations, and what witnesses have actually said, and what witnesses have been shown before providing their statements, that the Police disclose the records of their investigations, summaries of evidence, in relation to witnesses who the Crown has called in its own case.”

13. In oral submissions, Mr Connolly for the Accused drew attention to a number of issues relating to the inadequacy of disclosure, and the obligation of disclosure falling upon police officers pursuant to s 15A of the Director of Public Prosecutions Act 1986, and also that falling on the Crown pursuant to s 142 of the Criminal Procedure Act 1986. Often the clear distinction between these differing obligations was not maintained in Mr Conolly’s submissions.

14. In order to justify the terms of each of the subpoenas, the Accused submitted that there had been a serious breach of the duty of disclosure by the Crown and police. It was submitted that this alleged failure to disclose justified the terms on which the subpoenas were issued and the production of the documents pursuant to those terms, so as to remedy the failure of the disclosure obligations.

15. Specifically, it was submitted that there had been late disclosure of a box of records which had led to the issue of these two subpoenas. This submission was not elaborated further in any way, nor was any evidence provided about the actual contents of the box of records. The Accused merely submitted that, in light of that late disclosure, it was not now possible for the Accused to distinguish between documents that have been disclosed by the Crown in accordance with its obligation, and police documents of the kind called for in the two challenged subpoenas (at least some of which, the Accused contends, ought to have been disclosed by the Crown). Mr Connolly, in that context, said:

“There is no distinction, except this: that as we see more documents, and as we read them, we have greater different definition of what exists we haven't seen.”

16. Mr Connolly addressed Exh TY, and in respect of paragraph 1 (which called for a copy of memos concerning Strike Force Reddan read by Detective Russell), he submitted:

“It is plain that, your honour, and a trial like this one, with this officer working on this case almost exclusively for four years, they have forensic purpose for the defence to read.

How do we know they exist? We know they exist because the police have produced now material which shows they exist. And why would the police now say these memos concerning [Strike Force] Reddan should not be shown to the defence?

And we have a variable position. Until yesterday my understanding was public policy, and now it is an issue whether they have forensic purpose. Plainly they do.”

17. A similar style of submission was followed with respect to the paragraphs calling for all emails between Detective Russell and identified individuals. Of those emails, Mr Connolly submitted:

“And we say communications by Detective Russell, who does not keep notes, with Thurgood, Loudon and Shatford are of forensic importance in this case and should be produced. And I say this is so obvious, it is as obvious as night follows day.”

18. In the course of his submissions, Mr Connolly said that with respect to the paragraphs in the challenged subpoenas touching upon the work of Detective Russell, the mere fact that documents related to Detective Russell and his work led inexorably to the conclusion that, within the relevant legal test, it was “… on the cards” that the documents would assist the Accused. Mr Connolly extended that submission to the documents relating to the work of Detective Heffernan (who was the officer Second In Charge of the investigation). This submission encompassed all of the paragraphs of the challenged subpoenas, except paragraph 8, 10-12 and 24 of Exh TY, and paragraphs 1-2, 13 and 26‑33 of Exh TZ.

19. A specific submission was made with respect to paragraph 14 of Exhibit TY relating to the subject matter of interaction between officers of Strike Force Reddan and one or more officers of the FBI in 2016. With respect to that paragraph, the following was submitted:

“So that when we come to meetings between Detective Heffernan and officers from the FBI on 28 April, it's hugely important, and may fill a gap that is immense: what evidence should a diligent police force, instructing the Director of Public Prosecutions, assemble for disclosure? So that's just the tip of the problem.

But we all of a sudden now have something to work on. A meeting with the FBI. And how important is that, when we say, it is plain that each of the bombings were separate and different.

It is plain, we say, that it was not the product of one man. It is plain that, whoever did these Events, were probably recruiting people, and professionals, and they were teams. And here we are, a discussion with the FBI. Where did that go? We certainly have one suspect in Syria for a period. We just don't know. One would like to find when.”

20. Mr Connolly queried the submission by counsel for the Commissioner that no legitimate forensic purpose was disclosed in the subpoenas saying this:

“So we are sensitive to what is missing. We’re sensitive to not knowing what we don't know, but our commonsense tells us there is volumes of missing information by agencies that probably spent millions of dollars and the only whispers we get are when the defence issues some successful subpoenas. And then now, at the end of the trial, we get a bit of a breakthrough. And so the defence is extremely sensitive to a claim by the New South Wales police that it has no forensic value. …”

21. It is unnecessary to continue setting out the submissions. It can be fairly said that the oral submissions for the Accused were commenced from, and based upon, the notion that there had been inadequate disclosure by police and the Crown in accordance with their statutory obligations. Consequently, it was said that such lack of disclosure could properly be remedied only by the Accused issuing subpoenas.

22. The submissions then proceeded to the proposition that the Accused had an entitlement to be given copies of, or else to inspect copies of, all documents in the possession of investigating police. This is because, it was said, such documents necessarily were relevant by virtue of the fact they had been either created by police or having come into the possession of the police in connection with the investigation. It was submitted that the Accused had a legitimate forensic purpose to see all relevant documents. The submission proceeded to include the proposition that if a document was relevant and was in police possession, it must be “… on the cards” that would assist the case for the Accused.

23. In support of the issue of relevance in the course of submissions, Mr Connolly submitted that it was the case for the Accused that police had closed their minds to the proper investigation of all seven Events when they came to reinvestigate them commencing in 2013. He submitted that it followed that all conduct of the police in the course the reinvestigation was relevant and that the Accused had a legitimate forensic purpose in examining all documents.

24. By reference to individual paragraphs, Mr Conolly submitted that each was relevant to the failure of police to disclose records of investigations; that they were relevant to what was said to be slow and limited disclosure by police and the Crown; and that paragraph 24 of Exh TY and other similar paragraphs were made relevant by the failure of police to produce documents which had been shown to, or provided by, witnesses from whom statements been obtained.

Submissions for the Commissioner

25. Putting it in summary form, the Commissioner drew attention to the principles of law relevant to subpoenas and submitted, that the Accused had not shown anything more than that the challenged subpoenas were fishing expeditions. It was submitted that the subpoenas were merely seeking to identify whether documents existed and, if so, to read them. It was consequently submitted that the Accused was unable to show any legitimate forensic purpose with respect to any of the documents covered by the challenged subpoenas. The Commissioner also argued that the submissions for the Accused did not identify or demonstrate that it was “…on the cards” that of any of the documents sought would be likely to assist.

Relevant Legal Principles

26. The legal principles with respect to the setting aside of a subpoena (or part thereof) are well established. I have dealt with those principles in a number of previous judgments in this case, including: R v Warwick (No.12) [2018] NSWSC 522 at [28]-[35]; R v Warwick (No.15) [2018] NSWSC 652 at [6]-[8]; R v Warwick (No.16) [2018] NSWSC 733 at [10]-[11].

27. In R v Warwick (No.12) I set out the relevant legal principles. It is convenient to repeat what I there wrote:

“[28]   It is appropriate to set out the legal principles which apply to the consideration by this Court of the enforcement of a subpoena, or else, the issue of whether the subpoena ought to be set aside in whole or in part.

[29]   I note that as this is a criminal case, it is appropriate to adopt a more liberal approach to these principles ‘… in order to ensure, so far as possible, against the risk of injustice to an accused person’: Carroll v Attorney-General for NSW (1993) 70 A Crim R 162 at 170 per Kirby ACJ; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 456 per Brennan J.

[30]   It is a misuse of the process of issuing of subpoenas to embark upon a ‘fishing expedition’ in the hope that something might possibly turn up that would be of utility in a criminal trial. In order to avoid such a conclusion, the subpoena needs to be drafted with some precision: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573ff, where Jordan CJ said:

‘A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant …’

[31]   Assuming that the terms of a subpoena do not show that the documents being sought constitute a fishing expedition, then, it is necessary in this case for the Accused, upon whose behalf the subpoena was issued, to identify “… expressly and with precision …” the legitimate forensic purpose for the documents before production will be required or access permitted: R v Saleam (1989) 16 NSWLR 14 at 18C per Hunt J; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681F per Hunt CJ at CL.

[32]   A legitimate forensic purpose is not established by the mere proposition that the documents caught by the subpoena are, or may be, relevant: Carroll at 181, where Mahoney AP said:

‘But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them … the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’ to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.’

[33]   See also Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [59]-[63] per Beazley JA (James and Kirby JJ agreeing).

[34]   What must be established is that it is “on the cards” that the documents will materially assist the case of the Accused: Alister v The Queen per Gibbs CJ at 414; R v Saleam (1989); R v Saleam [1999] NSWCCA 86, at [11] per Simpson J (with whom Spigelman CJ and Studdert J agreed). There, her Honour said:

‘The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.’

[35]   See also Perish v R [2015] NSWCCA 98 at [30] per RA Hulme J.”

Discernment

28. The Accused submitted that the subpoena was valid due to a failure by the Crown comply with the duty of disclosure. Therefore, any analysis usefully commences with a consideration of that duty. It was recently the subject of consideration in Marwan v Director of Public Prosecutions [2019] NSWCCA 161. In that decision, at [29], Leeming JA (with whom RA Hulme J agreed) said:

“It is also to be borne in mind that the so-called ‘duty’ is unusual. So too is what may loosely be described as the ‘right’ of the accused to disclosure (both illustrate the way in which legal usage commonly departs from Hohfeldian exactness). For it is quite plain that the ‘duty’ to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial…”

29. It seems to me that, if the Accused has no right based upon the duty of disclosure to enforce the production of documents (save by reference to a fair trial), then it is certainly not open to the Accused to issue a subpoena for the purpose of obtaining what the Accused regards as adequate disclosure.

30. It seems clear to me from a careful reading of the paragraphs of the schedules of Exhibits TY and TZ, that the Accused has identified, through the consideration of previous documents obtained through subpoena, particular events and meetings that have taken place, details of duties and police procedure undertaken, and the existence of particular documents associated with the investigation. Consequently, the Accused has now made various demands for any and all of the documents which may relate to those matters.

31. Paragraph 1 of the first subpoena, Exhibit TY, calls for copies of memos read by Detective Russell “… and referred to in most days of his notebooks”. Paragraph 5 calls for records of a meeting held between three detectives, including Detective Russell, over a period of 1½ hours on an identified day. Paragraph 10 calls for disclosure through documents of all facts matters and circumstances surrounding the location of a running sheet and the circumstances leading to its disclosure. The following paragraph, seeks records of all investigations made by police since 1990 (a period of 29 years) in relation to “the matters raised in running sheet 2”. Running sheet 2, the document the subject of these paragraphs, has been tendered in the proceedings and is a record in chronological form of the time and date when particular events occurred and information was received at the police command post situated at, or in the vicinity of, the Kingdom Hall immediately after the explosion that took place. Paragraph 24 of Exh TY calls for records of all documents shown to each witness called in the Crown case, prior to or at the time of preparation of the statement of the witness, where those documents are not commented upon in the statement of the witness.

32. Paragraph 7 of the second subpoena, Exhibit TZ, calls for records, including all file notes and records of entries, made by Detective Russell on a daily basis as referred to in his duty book. Paragraph 9 calls for records of team meetings of Strike Force Reddan including all agendas, file notes, meeting notes and summaries of the meetings held on specific identified dates. Paragraph 13 calls for a copy of all documents, photographs, emails and other records provided by Ms Andrea Blanchard and Ms Trudi Kennedy to police from 2013 to date. Paragraph 24 of Exhibit TZ calls for records of a meeting which is recorded as having occurred on an identified date between the Commissioner for Police and the Deputy Commissioner of Police. Paragraph 33 seeks the records of the taking of statements from members of an identified family by a named detective which records are said to “… include a copy of the requisitions or questions from which the detective was working … when taking the statements…”.

33. These examples demonstrate that on their face, and without anything further, the challenged subpoenas were issued for the purpose of ascertaining whether documents existed, in circumstances where the description of the documents and categories do not carry any relationship to any issue of relevance. Rather it is clear from the terms of the subpoenas that what is being sought is an exercise akin to civil discovery.

34. Further, none of the submissions by the solicitor for the Accused identified any legitimate forensic purpose driven by reference to any specific paragraph. The submissions to which I have earlier referred proceeded not on the basis of some clear relationship between a paragraph in the subpoena and a specific issue in the proceedings (thereby demonstrating a clear legitimate forensic purpose), but rather from the basis that the solicitors for the Accused wished to see all documents that have been referred to, seen by, or prepared by police in the course of their investigation.

35. These conclusions mean that it necessarily follows that the Accused has not demonstrated, with respect to any of the categories of documents sought or any particular document, that it is on the cards the contents of that document would help the Accused or provide any assistance to him.

36. For these reasons I upheld the Notices of Motion and ordered that the subpoenas should be set aside.

Orders

37. I make the following orders:

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 MFI TZ.

1. Otherwise dismiss the Notices of Motion filed by Commissioner of Police on 7 November 2019 and 25 November 2019.

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Decision last updated: 24 February 2020