R v Warwick (No.84)

[2019] NSWSC 1908

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.84) [2019] NSWSC 1908
Hearing dates:	09 December 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Application by the Accused for adjournment of Notices of Motion dated 7 November 2019 and 25 November 2019 is refused.
Catchwords:	CRIMINAL PROCEDURE – Trial – application by the accused for adjournment of two Notices of Motion by NSW Commissioner of Police – whether subpoenas objected to have a legitimate forensic purpose - not satisfied that adjournment of Notices of Motion is justified - application dismissed
Legislation Cited:	Evidence Act 1995
Cases Cited:	Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 Prasad v R [1994] HCA 2; (1994) 68 ALJR 194 R v Warwick (No.12) [2018] NSWSC 522 The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Waind v Hill [1978] 1 NSWLR 372
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 (Commissioner of Police NSW)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) State Crown Solicitor’s 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 particular witnesses.

EX TEMPORE Judgment (T.8389)

Application

1. Application is made by the Accused for the adjournment of the hearing of two Notices of Motion.

2. The Notices of Motion are those filed on behalf of the Commissioner of Police, New South Wales Police Force. The first Motion was filed on 7 November 2019 and the second on 25 November 2019.

3. The hearing of the Motions commenced on 26 November 2019. The hearing was adjourned at the end of that day in circumstances where the Accused had made arrangements to call a number of expert witnesses on specific dates during the week to give evidence as part of his answer to the Crown case.

4. The resumed hearing of these two Notices of Motion is due to commence today.

Notices of Motion

5. The first Notice of Motion sought an order that the subpoena issued by the Accused, addressed to the Commissioner of Police on Monday, 4 November 2019, be set aside. The second Motion sought a similar order with respect to a subpoena which had been issued on Friday, 15 November 2019.

6. The Commissioner, in a short written outline of submissions dated Monday, 25 November 2019, noted that it was not apparent on the face of either of the subpoenas that the documents that were sought existed or might exist. The Commissioner further noted that there was no identification of any legitimate forensic purpose for the seeking of the documents which were identified.

7. The nature of the subpoena was noted as being so broad and of a kind which would fulfil the description that each of them constituted a fishing expedition: see The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. In addition, the Commissioner noted in his outline that the subpoenas were being used contrary to any proper purpose because each subpoena was an attempt to obtain discovery: see Small at 573 and Waind v Hill [1978] 1 NSWLR 372 at 382.

8. The hearing of submissions commenced on Tuesday, 26 November 2019. At that time the Accused argued, orally, by reference to each paragraph of each of the subpoenas, that each paragraph was a description of documents which had a legitimate forensic purpose which was capable of clear identification. At the time submissions came to an end, the Accused had dealt with all of the paragraphs in the first subpoena and was dealing with some of the paragraphs in the second subpoena. The hearing of the Motions was adjourned to a convenient date, namely today.

Application – Evidence for the Accused

9. At the commencement of the hearing today, leave was sought on behalf of the Accused to file a further affidavit of Ms Elizabeth Ramsay sworn 9 December 2019, and to read that affidavit in support of submissions on the legitimate forensic purpose of the two subpoenas.

10. In the course of the hearing this morning, Mr Conolly, who is appears for the Accused, noted that the subpoenas under challenge were not the first occasion upon which the Accused had issued subpoenas to the Commissioner. Mr Conolly noted that between Tuesday, 17 April 2018 and Monday, 20 August 2018, six separate subpoenas were issued. Further, prior to the two subpoenas in question, a subpoena was issued on Tuesday, 29 October 2019.

11. The affidavit of Ms Ramsay noted that in answer to the subpoena of 29 October 2019, in the period between 30 October 2019 and 6 November 2019, the duty books of Detective Russell (the Officer-in-Charge of the investigation which has led to the Indictment before the Court) and Detective Heffernan (an officer who has been assisting Detective Russell) were produced to the Court. Copies were made available to the Accused in a partially redacted form. The affidavit also noted the dates upon which other duty books have been produced. It appears that copies of those duty books were last produced on 18 November 2019.

Application – Submissions of the Accused

12. Mr Conolly has sought an adjournment of the hearing of the two Motions. In support of that adjournment he has submitted that those representing the Accused have now had the opportunity to start to read through the duty books produced by the Commissioner in answer to the subpoena filed 24 October 2019 and, through this, more information has become available. This new information is returned to in the affidavit of 9 December 2019 of Ms Ramsay. Mr Conolly noted that this new information informs the legitimate forensic purpose of the subpoenas which are the subject of challenge.

13. Accordingly, he submitted that the Motions should be adjourned for a week to enable those representing the Accused to read the balance of the duty books which have been produced. He submitted that having the opportunity to do so would allow the lawyers for the Accused to be in a better position to argue what the legitimate forensic purpose of the documents nominated in the subpoena is.

Trial Context

14. It is relevant in considering this application to note that the Crown closed its case on Thursday, 31 October 2019. An application was made by the Accused that he had no case to answer. The hearing of submissions on the application commenced on Monday, 11 November 2019, and finished on Monday, 18 November 2019. On Thursday, 21 November 2019, the Court made an order dismissing the application, with reasons to be published in due course.

15. On Monday, 25 November 2019, when the hearing of the trial resumed, the Accused made an application for a Prasad direction which was rejected: see Prasad v R [1994] HCA 2; (1994) 68 ALJR 194; Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9.

16. The lawyers for the Accused then indicated that the Accused did not propose to give evidence. The Court was then informed of arrangements with respect to when a number of expert witnesses would be called. Although the relevant subpoenas were before the Court on that day, at the request of the Accused, and with the agreement of counsel for the Commissioner, argument on the Motions was adjourned until the following day.

Discernment

17. When a subpoena is issued, the party causing its issue is obliged to consider whether the documents sought are appropriate. It is also necessary to ensure that a subpoena is not being used for an inappropriate purpose. In R v Warwick (No.12) [2018] NSWSC 522, at [28]‑[35], when dealing with a subpoena issued by the Accused to the body responsible for the Jehovah's Witness Church, I set out the legal principles applicable with respect to the issuing of, and the setting aside of, a subpoena. I will not repeat what was there written. The essence of the application of legal principles is that at the time a subpoena is issued, the terms of it must relate to matters which are in issue in the proceedings; that the documents being sought are being sought for a legitimate forensic purpose; and that it is “on the cards” that, if the documents are produced, they will materially assist the case for the Accused.

18. When challenged by the recipient of the subpoena, the party responsible for its issue carries the onus of demonstrating that the subpoena is a proper one and that there is a legitimate forensic purpose for the document being sought.

19. In making these remarks, I pause immediately to say that I have made no decision as to the application of these principles to the subpoenas which are the subject of the two Notices of Motion. This is because the submissions of the parties are incomplete. However, the point to be drawn from the relevant authorities is that the person responsible for the issuing of a subpoena is obliged, when challenged, to be in a position to defend the subpoena by reference to the legitimate forensic purpose and relevance which existed at the time it was issued.

20. There is nothing in the submissions that have been made to me this morning which would suggest that the Accused is not able, from the material which is before the Court (such as it is), to deal with the question of the appropriateness of the subpoena. The latest affidavit sets out, over many paragraphs, what seem to be arguments with respect to the particular paragraphs in the subpoenas.

21. But, it seems to me that if the subpoena when issued was appropriate (given the time which has elapsed since the subpoenas were issued and the Notices of Motion returned) and given the nature of what is sought in the subpoenas, the Accused is in an appropriate position now to place any arguments which he wishes before the Court. There is no obvious disadvantage to the Accused in being required to address those arguments now.

22. The principles applicable to assessing the validity of a subpoena apply both at the time of the issuing of the subpoena and then when it is challenged. It is not generally open to a party who has issued a subpoena to attempt to defend its legitimacy by reference to information contained in documents which have not yet been read.

23. I see nothing in the affidavit of Ms Ramsay, nor do I take anything from the oral submissions that were put this morning, as justifying the adjournment of these Motions any further.

24. Given the stage that the trial has reached, there is an obvious importance to determine these Motions at the earliest reasonable opportunity. In my view, that opportunity is now and I decline the application for an adjournment.

Orders

25. I make the following order:

1. Application by the Accused for the adjournment of Notices of Motion dated 7 November 2019 and 25 November 2019 is refused.

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Decision last updated: 29 January 2020