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

1. 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:

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

2. 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.

2. A subpoena in identical terms was also issued addressed to the Principal Registrar of the Family Court of Australia.

3. The subpoenas were served by facsimile and required the production of the documents to this Court on 19 December 2019.

4. 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.

5. 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

6. 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.

7. 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 had been undertaken in order to find the documents and answer the subpoena.

Searches for the Documents

8. Mr David Pringle, who is the Acting Chief Executive Officer and Principal Registrar of both the Family Court of Australia and the Federal Circuit Court of Australia, affirmed an affidavit on 22 January 2020. In this affidavit he described his role, the receipt of the subpoenas in question, the nature of the searches that had been undertaken, and the inability to find the documents sought.

Application to Cross-Examine and the Opposition

9. Mr Conolly for the Accused has made application today orally for such orders as were necessary to enable him to cross-examine Mr Pringle about the reasonableness and adequacy of the searches that were undertaken as set out in his affidavit

10. A sense of the sort of questions and issues which Mr Conolly for the Accused wished explore in cross-examination of Mr Pringle is to be found in Exh TBD, an email tendered on the hearing of this application. Furthermore, in oral submissions as the basis for his application, Mr Conolly outlined what he submitted were the inadequacies of the searches that were undertaken and difficulties he described with the evidence of Mr Pringle about those searches.

11. Ms Mitchelmore SC, who appears for both the Chief Justice of the Family Court of Australia and the Principal Registrar, submitted that the obligation of those receiving subpoenas of this kind is to make reasonable searches for documents in answer to the subpoena and that, having regard to the contents of the affidavit of Mr Pringle, the Court ought be satisfied that reasonable searches had been made and that there was no basis demonstrated for any further cross‑examination of Mr Pringle on the question of the adequacy of the searches.

Factual Context

12. Before determining the question ultimately posed by the application, it is convenient to note the context in which the document described in subparagraph (a) of the subpoenas, namely “… the report prepared by Justice Marshall in or about 1984” is said to actually exist by reference to the evidence in the trial.

13. Exhibit 491, which is the statement of Mr Frank Fitzpatrick (who was a Deputy Registrar at the Family Court of Australia at the Parramatta Registry at the relevant time) records his recollection that Justice John Marshall of the Family Court, a retired Judge who was then based in Adelaide, undertook a review of Family Court files held in the Registry at Parramatta in the second half of 1984. Mr Fitzpatrick recorded that he arranged for Justice Marshall’s accommodation at the Parramatta Registry whilst he was conducting that review. He says that the review was "to see if he could provide a list of potential suspects from a judicial perspective".

14. Mr Fitzpatrick says that he never sighted any report written by Justice Marshall. He expressed the belief that as Justice Marshall was appointed to conduct the review by the then Chief Justice of the Family Court, the Honourable Elizabeth Evatt AC, he assumed that any completed report would have been provided to the Chief Justice.

15. Mr Fitzpatrick’s statement then notes, and annexes, documents which contain, in various forms, lists of names of individuals (sometimes, but not always, including their address) who are said to be suspects in the “Family Court bombings” - the names of whom were provided by Justice Marshall.

16. These documents included police running sheets which adopted a standard format by which the names of possible suspects were provided to them for their follow-up. That format refers to information received from Justice Marshall, or else nominations by him of individuals, the details of who are provided but does not specifically refer to any actual document described as a Report.

17. Mr Brian Knox, who was the Principal Registrar of the Family Court of Australia in 1984 and 1985, based in Sydney, gave evidence on 10 December 2019in which he indicated that he knew Justice Marshall (T.8464). He was asked if he was aware that Justice Marshall prepared a report. He said:

“I'm not aware that he prepared a report. I'm aware he carried out investigations. What he did with that I don't know. I assume he prepared a report.”

18. Mr Knox’s evidence indicated that he undertook the administrative task of ensuring that Commonwealth funding was available to be provided to Justice Marshall to undertake the work. He also confirmed that he did not see any documentation describing the nature of the task, the parameters or other directions which may have been given to Justice Marshall, to enable him to undertake his review.

19. Mr Knox was questioned about the documentation that would be likely to have come into existence in relation to the provision of funding. At T.8465 he was asked where such documentation would be filed within the Family Court system. His evidence was that it would have been filed in his, that is to say the Principal Registrar's system of administrative records if any documents had been sent out under his name. If any documents had been sent out under the name of the Chief Justice, then such documents would have been filed in the Chief Justice's Chambers. He added that he did not keep any personal copies of such documents.

20. Mr Knox was asked whether, to his knowledge, there were any progress reports given by Justice Marshall relating to his work. He said there were no such progress reports to his knowledge but that he was almost certain that there would have been verbal reports given to the Judges at the Parramatta Registry and to the Chief Justice.

21. Mr Knox was asked whether the terms of the funding for the project would have included a condition which required a written report. He said that he did not know whether that was so or not.

22. Justice Josephine Maxwell, who was a Judge of the Family Court of Australia in the period between 1980 and 1985, although she did not permanently sit at the Parramatta Registry, gave evidence in 2018 as an early witness in the trial. Her evidence did not touch upon the existence of any report by Justice Marshall nor whether she had seen it.

23. I describe this factual context because, whilst it is easy to assert that the likelihood is that Justice Marshall would have provided a form of written report to the Chief Justice of the Family Court, the evidence does not permit any firm conclusion which identifies a specific document, or which identifies specifically where such a document was filed or located in 1984 and, therefore, where it might be expected to be found now.

24. It is in light of that context that one has to consider whether the searches undertaken by Mr Pringle, as deposed to in his affidavit, were reasonable, and whether the Accused ought to be permitted to cross-examine Mr Pringle.

Substance of the Principal Registrar’s Evidence

25. The details of all of the searches which have been undertaken are contained in Mr Pringle’s affidavit of 22 January 2020. It is unnecessary in the course of this ex tempore judgment to recite them. I accept that the searches described were undertaken as described.

26. The essence of what is there recorded is that Mr Pringle has approached the searches (and his description of them) by recording initially that although he was not at the Family Court at the relevant time in 1984, any documents presently held by the Family Court of Australia, which are of an historic kind (such as those brought into existence in or around 1984) are not stored by any uniform or single process. His inquiries established that records from 1984 might be found at the relevant local Registry, in this case Parramatta, at a secondary storage facility, or else at the National Archives of Australia.

27. Upon receiving the subpoenas, Mr Pringle directed two officers of the Family Court (one being the Legal and Policy Officer in his office, the second being the Registrar and Executive Case Manager) to search for the documents named in the subpoenas.

28. The searches that were undertaken establish to my satisfaction that a physical search of the Parramatta Registry did not reveal the existence of the documents sought. As well, a search of the Electronic Document Management and Archiving System for older documents was made digitally, in light of the conversion of that database into a digital format.

29. Enquiries were made of a number of court staff and two Judges of the Family Court of Australia who were thought to potentially have some knowledge of the documents.

30. Physical searches were made of the Chambers of the present Chief Justice, which have some hard copy archive holdings of "Chief Justice-related material". None of those searches or enquiries turned up the documents which are sought.

31. Mr Pringle also provided evidence about searches which had previously been undertaken in 2016, 2017 and 2019 in response to police enquiries about and requested for the documents now sought on subpoena.

32. Based on enquiries he made of a former senior executive of the Family Court who had personal involvement in the conduct of those earlier searches, Mr Pringle says that enquiries were made of the former Chief Justice, the Honourable Elizabeth Evatt AC, and physical searches were made of any records of hers still in the Court. Enquiries were made with the family of the late Justice Marshall. Physical searches were undertaken of the Sydney, Parramatta and Melbourne Registries and a search of the library resources, including minutes and papers from meetings emanating from the records of the former Chief Justice. As well, the archives of the Family Court were searched by an officer with appropriate information and knowledge management skills, and the National Archives of Australia also undertook a search of its documents. None of these searches have found the documents the subject of the subpoenas.

33. Mr Pringle says that in 2019 a search for the documents was also undertaken of the digital files of the then Chief Justice, the Honourable Diana Bryant AO QC. Nothing was found.

34. The substantive effect of Mr Pringle's affidavit is that over a number of years, in response to requests from police and the two most recent subpoenas, enquiries were made of people who might relevantly have had knowledge of the existence of such documents and that the records of the Court have been searched, both in their physical state and digitally, by reference to a converted digital database.

Submissions for the Accused

35. It is not suggested on this application that anything which Mr Pringle has said is not to be accepted. Rather, submissions were commenced with the underlying proposition that the documents in question were of importance and significance. Consequently, the submission was put that one would expect that all efforts would have been made by the then Chief Justice of the Family Court, and any other staff of the Family Court, that upon receipt of the document they would have retained a copy of it, have kept it in an identified file or location in the filing system and that it could be expected that any reasonable search would have uncovered such a document. It was then submitted that, in light of that, a response that searches so far undertaken have failed to identify the document, must lead inevitably to a conclusion that those searches were inadequate, and accordingly, were not reasonable.

36. It was further submitted that Mr Pringle ought be required to attend for cross‑examination because, for two reasons, his evidence was inadequate. First, because the names of those who undertook searches were not provided and, accordingly, further enquiries could not be made of those named individuals. Secondly, that common‑sense would compel a conclusion that there must have been records made by the staff of the Family Court at the time of undertaking searches in 2016, 2017 and 2019 which would indicate the following details: the task that those people were given; the extent and nature of the task; to whom the task had been delegated; the actual conduct of the search including, I infer, physically where it was done; the time over which it was done; the categories of documents that were examined; and the result of the searches.

37. It was submitted that, as a matter of common‑sense, such documents recording the earlier searches would be contained within the records of the Family Court. Therefore, the absence of them from Mr Pringle's affidavit was, in and of itself, a reason to conclude that the searches undertaken as described by Mr Pringle in his affidavit were not reasonable or adequate.

38. It was further submitted by Mr Conolly that the content of Mr Pringle’s affidavit contained hearsay material, and thus it is not possible for the Court to conclude that the searches were reasonable.

39. It was additionally contended in both Exh TBD (an email) and orally that the searches in answer to the subpoena were not reasonable because no recent or additional specific enquiry had been made with the Honourable Elizabeth Evatt AC, for the purpose of locating the documents. It was submitted that, since it was possible that she might have a copy of the documents at home, the Court could not be satisfied that the searches undertaken were reasonable unless such specific inquiry was made of the former Chief Justice.

Submissions for the Recipients of the Subpoena

40. Counsel for the Principal Registrar submitted, by reference to the detail of Mr Pringle’s affidavit, that both the searches made on this occasion and the searches undertaken on previous occasions were adequate and reasonably conducted. It was submitted that the Court should therefore conclude that as those searches were adequate, there was no purpose to be served by any cross-examination of Mr Pringle. Shortly put, it was said, in effect, that no further search would be likely to produce any different results.

Submissions of the Accused in Reply

41. In reply, it was put that the evidence as a whole was inadequate to satisfy the Court of the reasonableness of the searches in the absence of affidavits from individuals who actually carried out the searches and could give direct evidence of what it was that they did.

Discernment

42. A person or entity who, or which, receives a subpoena seeking the production of specified documents, is obliged to undertake reasonable searches and make reasonable enquiries to find the specific documents and produce them to the Court.

43. "Reasonableness" is a question to be judged by reference to the nature and identity of the individual and entity and the way in which records are held, whether directly in their possession, or indirectly by a third party under their control, or by a third party who may have custody of the documents on their behalf. The reasonableness of searches and enquiries is also to be judged with regard to the nature and content of the document, the context in which it came to exist, the passage of time since it came into existence and the history of any previous searches and the results thereof.

44. The burden on the recipient of a subpoena is different from the obligation on a party to proceedings to provide discovery. It is an error to think that one can judge the response of the recipient of a subpoena by reference to principles and practices which exist with respect to discovery in civil cases. As well, the burden on the recipient of a subpoena is different from the obligation falling upon the Crown regarding disclosure to an accused in the course of a criminal trial. It also differs from the obligation falling on law enforcement officers to provide disclosure to the Crown.

45. The Events in this trial are alleged by the Crown to directly arise from Family Court proceedings, and the offences upon which the Accused is indicted refer, in significant part, to crimes against the Judges of the Family Court who sat at Parramatta and to the building in which the Family Court was housed at Parramatta. Nevertheless, the Family Court itself, the present Chief Justice of the Family Court and the Principal Registrar of the Family Court are not involved as a party in this criminal trial. In legal terms, they are a stranger, or a “third party”, to the litigation comprised by this criminal trial.

46. The question, therefore, is whether, having regard to the affidavit of Mr Pringle, the Court is satisfied that the searches to identify the document were reasonable and that the response of the recipients of the subpoenas - that no document can be produced - is a reasonable and adequate response, or whether the response set out in the affidavit of Mr Pringle suggests, at least a prima facie level, that the searches were inadequate and unreasonable and that Mr Pringle ought be cross-examined upon that subject so as to satisfy the Court that the response to the subpoena is adequate. There would then arise a further question of whether orders, as yet unidentified, ought be made with respect to a proper answer to the subpoenas.

42. Whilst, as I have earlier said, it may be that the Court could infer that there was a report prepared by Justice Marshall in or about 1984, the evidence does not permit a conclusion that such a report was in fact completed nor that it has been identified as having ever been in existence. The searches for such a document, therefore, are being conducted in a vacuum about context and location. They are being conducted in a vacuum about any administrative file number, where it may have been filed, whose filing system the document might be in, and therefore who might have a copy of it and where it is to be found. The evidence of Mr Knox and Mr Fitzpatrick was that they did not ever actually see such a report.

43. It would seem unlikely, in those circumstances, that the report (assuming it existed), or a copy of it, would have made its way into the administrative filing system of the Family Court at Parramatta or the filing system maintained by Mr Knox as the Principal Registrar. I am sure that both Mr Knox and Mr Fitzpatrick would have remembered seeing such a report if it did get filed within their administrative systems. As well, they were each of the opinion that if the report was prepared, it would have most likely been provided directly to the Chief Justice.

44. The affidavit of Mr Pringle deposes to the fact that enquiries were made of the former Chief Justice as to the report and its whereabouts, and physical searches were made of records belonging to her that were still kept at the Court. If the former Chief Justice had retained a copy of the document at her home, or in her personal records, I would have anticipated that the enquiries which were made with her would have led her to reveal the existence of that copy of the report. I accept that if a report was prepared it would have been of significance to the former Chief Justice and, accordingly, I do not doubt that, even though enquiry was first made of her in or around 2016, she would still have recalled such a report and its existence if she had a copy of it. I do not expect any different response would be received if an enquiry was made now.

45. I have concluded that, upon receipt of the subpoenas, the enquiries that were in fact undertaken and the searches that were in fact made were of themselves, and without more, reasonable and adequate to identify and locate the documents sought under the subpoenas.

46. Additionally, having regard to the evidence about earlier searches in 2016, 2017 and 2019, I am well satisfied that the recipients of the subpoenas have undertaken, or caused to be undertaken, adequate searches and enquiries to identify and locate the original of any report of Justice Marshall, if it ever existed, and any copies which were made of it.

47. I do not accept the submission of Mr Conolly, for the Accused, that, on the basis of common-sense alone, there must exist, in the Family Court, documents which describe the detail of the searches made in 2016 and 2017. Nor do I accept that, in the absence of such records being annexed to Mr Pringle’s affidavit, the Court would thereby conclude that the searches and enquiries were unreasonable.

48. That submission seems to me to be redolent of the imposition of the obligation on a party confronted with an order for discovery in civil litigation. It is not a submission which has any place in the context of a subpoena issued to a stranger in a criminal trial. Nor would I infer necessarily that records were created - they might have been; they might not have been - but I certainly do not conclude that the absence of written records being provided in Mr Pringle's affidavit evidences an inadequacy of searches undertaken by him.

49. I do not accept that the affidavit of Mr Pringle, of the kind and in the terms in which it has been made, is not adequate evidence to describe the nature and type of searches undertaken for a document or documents in the possession of those who have been subpoenaed. That is so for two reasons.

50. First, Mr Pringle was directed to put on an affidavit which necessarily involved him describing, in the terms he has (including in hearsay terms) the nature of the searches that he undertook or caused to be undertaken.

51. Secondly, the evidence demonstrates that searches were undertaken by a wide variety of people in a variety of roles - some of whom no longer work at the Family Court of Australia. It is inappropriate for a stranger in a criminal trial who receives a subpoena to be required to collect direct evidence, by way of affidavit, from each person who was involved in any part of any search in order to satisfy the Court in answering that subpoena. This is particularly so when the documents that were searched for (and entirely correctly so) were those held by an institution, as opposed to an individual, other than the Chief Justice.

Conclusion

57. In conclusion, I am not prepared to make an order requiring Mr Pringle to attend for cross-examination. I am abundantly satisfied that, in response to the two subpoenas addressed to the Chief Justice of the Family Court of Australia and the Principal Registrar of the Family Court of Australia, the answer, that no documents of the kind sought can be found and produced is reasonable and is properly based on extensive searches and enquiries made since, and prior to, receipt of the subpoenas.

58. I refuse the application for the order sought by the Accused to require Mr Pringle to attend for cross-examination.

Orders

59. I make the following orders:

1. 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.

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Decision last updated: 06 February 2020