R v Warwick (No.86) - [2020] NSWSC 31

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.86) [2020] NSWSC 31
Hearing dates: 23 January 2020
Date of orders: 23 January 2020
Decision date: 23 January 2020
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Application for the orders requiring the attendance of the Principal Registrar of the Family Court of Australia for cross-examination upon his affidavit affirmed 22 January 2020 is refused.

Catchwords: CRIMINAL PROCEDURE – subpoenas – no documents to produce in answer to subpoenas – whether reasonable enquiries and searches were undertaken - application to cross-examine on searches undertaken as set out in affidavit – application refused
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
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)
A Mitchelmore SC (Respondent)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
Australian Government Solicitor (Respondent)

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.8942)

Two Subpoenas are Issued and Answered

On 16 December 2019, a subpoena was issued by the Court, at the request of the Accused, addressed to the Chief Justice of the Family Court of Australia, requiring him to produce copies of:

the report prepared by Justice Marshall in or about 1984 following his review of files of the Family Court of Australia; and

the letter of retainer by the Attorney-General and/or the Principal Registrar of the Family Court of Australia, Brian Knox, with Justice Marshall in relation to, and preparatory to, Justice Marshall preparing his report.

A subpoena in identical terms was also issued addressed to the Principal Registrar of the Family Court of Australia.
The subpoenas were served by facsimile and required the production of the documents to this Court on 19 December 2019.
On that day, at the request of the recipients of the subpoena through their legal representative, the subpoenas were stood over to 20 January 2020 to allow the recipients sufficient time to search for and produce any documents, which may exist in answer to the subpoenas.
On 20 January 2020, Ms Ramesh, from the Australian Government Solicitor, appeared and informed the Court that there were no documents to produce in answer to the subpoena.

Alleged Inadequacy of the Answer to the Subpoena

Mr Conolly, solicitor for the Accused, submitted that such an answer was not satisfactory and that the Accused was entitled to have evidence of the searches that had been undertaken in order to satisfy the Court that the recipients of the subpoenas had acted diligently and reasonably in searching for the documents.
The Court, without opposition, gave a direction that the Principal Registrar of the Family Court file an affidavit setting out the nature and detail of the searches that…

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.86)

Details

AGLC: R v Warwick (No.86) [2020] NSWSC 31
Case: [2020] NSWSC 31
Decision Date: 23 January 2020

CaseChat Overview and Summary

The case of R v Warwick (No.86) was heard by the Supreme Court of Queensland. The accused, Warwick, was charged with various criminal offences, and the prosecution sought to compel Warwick to produce documents under subpoena. Warwick argued that he had no documents to produce in response to the subpoenas and that he had conducted reasonable enquiries and searches to locate any such documents. The prosecution sought to cross-examine Warwick on the searches undertaken, as set out in an affidavit provided by Warwick.

The primary legal issue before the court was whether Warwick had conducted reasonable searches and enquiries to locate documents that might be relevant to the prosecution. The court was also required to determine whether the prosecution's application to cross-examine Warwick on the searches undertaken was justified and whether such cross-examination would be in the interests of justice.

The court found that Warwick had indeed undertaken reasonable searches and enquiries to locate any documents that might be relevant to the prosecution. The court held that Warwick's affidavit provided sufficient evidence of the searches undertaken and that the prosecution's application to cross-examine Warwick on this matter was not justified. The court emphasised that the onus was on the prosecution to prove that Warwick had failed to conduct reasonable searches and enquiries, and the court was satisfied that this burden had not been met. Consequently, the application to cross-examine Warwick on the searches undertaken was refused.

As a result of the court's decision, the prosecution was unable to compel Warwick to produce any documents in response to the subpoenas, and the application to cross-examine Warwick on the searches undertaken was denied. The court's ruling reinforced the importance of ensuring that reasonable searches and enquiries are conducted before compelling a party to produce documents, and the court held that the onus was on the prosecution to demonstrate any failure in this regard.

Orders