R v Warwick (No.89)

[2020] NSWSC 43

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.89) [2020] NSWSC 43
Hearing dates:	3 February 2020, 4 February 2020
Date of orders:	04 February 2020
Decision date:	04 February 2020
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1)   Order that the subpoena issued by the Accused to the Commissioner of Police, NSW Police on 31 January 2020 be set aside in whole. (2)   Otherwise dismiss the Notice of Motion filed on 3 February 2020.
Catchwords:	CRIMINAL PROCEDURE – subpoenas – application to set aside - whether a subpoena constitutes a “fishing expedition” – held that subpoena had no legitimate forensic purpose– subpoena set aside in whole
Legislation Cited:	Not Applicable
Cases Cited:	Alister v R [1983] HCA 45; (1984) 154 CLR 404 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 R v Warwick (No 12) [2018] NSWSC 522
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 (NSW Commissioner of Police) Respondent   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co NSW Crown Solicitors Office (NSW Commissioner of Police) (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.9208)

A Subpoena Issue

1. On 31 January 2020, application was made by the Accused for leave to issue a subpoena addressed to the Commissioner of Police, NSW Police (“the Commissioner”) and to have it returned on short notice. The subpoena was first returnable on 3 February 2020.

2. On that day, counsel for the Commissioner appeared and sought leave to file in court a Notice of Motion seeking an order that the subpoena be set aside.

The Subpoena

3. The subpoena, by reference to its schedule, sought the following documents:

“1.   The duty books, police notebooks, any other notebooks or any other notes in any form, of Detective Melanie Staples during the period of her investigation of these matters with Strike Force Reddan that were not produced in answer to the subpoena issued to the Commissioner of Police in these proceedings on 24 October 2019.

2.    All data stored on [email protected] associated with Strike Force Reddan, including all metadata or any other structure or organisation imposed on or embedded in such data.

3.    All documents in the nature of a user manual, or [email protected].”

Notice of Motion to Set Aside the Subpoena

4. In support of the Notice of Motion, the Commissioner relied upon the affidavit of Detective Mathieu Russell sworn 3 February 2020.

5. Mr Conolly for the Accused pressed the subpoena and relied upon two documents ultimately marked Exh TBE and Exh TBF. At the request of the Accused, and without opposition, submissions on the Notice of Motion were adjourned until today.

6. At the commencement of today's proceedings, the Accused sought, and obtained, leave to file in Court an affidavit of Ms Elizabeth Ramsay of 4 February 2020, and which was read in opposition to the Motion.

7. The Commissioner, in his Notice of Motion, sought that the subpoena be set aside on the basis that it lacked a legitimate forensic purpose and, alternatively, that compliance with paragraph 2 of the Schedule to the subpoena would be oppressive.

Relevant Legal Principles

8. The principles of law applicable in proceedings where a third party, such as the Commissioner, seeks to set aside a subpoena in whole or in part are well known. I have previously summarised these principles in R v Warwick (No 12) [2018] NSWSC 522 at [28] to [35] inclusive. These principles are of long standing, and do not need to be repeated here.

9. Over 80 years ago, Sir Frederick Jordan, the Chief Justice of this Court, in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 said that for a subpoena to produce documents addressed to a stranger to litigation to be valid, it was necessary that the subpoena specify with reasonable particularity the documents that it seeks to be produced. He said (at p. 573.):

“A subpoena ... 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.”

10. It is common to use a shorthand description here, namely “a fishing expedition”, as appeared in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414, where he said that "… a mere “fishing” expedition can never be allowed".

11. The phrase "fishing expedition" is used to describe an attempt by a person issuing a subpoena to produce documents to explore a large store of documents to see if a relevant document can be found or identified. The analogy is to that of a fisherman throwing their line into a body of water, hoping that they will find and attract a fish. What sort of fish might be found is a matter of speculation and will not be known. Many fishermen do not find or attract a fish. By analogy, a subpoena to produce documents merely to examine those documents in order to see if something relevant may be found is a subpoena which fails the relevant legal tests.

Submissions for the Accused

12. Mr Conolly for the Accused, drew attention to evidence given in the trial which clearly establishes that:

1. when police investigated the events which are the subject of the charges on the indictment in the period between 1980 and 1987, records principally consisted of paper and also, it appears, were placed in some form of electronic database by the use of one or more computers;

2. in 2013 and subsequently, when Strike Force Reddan was established, the electronic database created between 1980 and 1987 did not exist and was not available to the officers of Strike Force Reddan, although paper records were available;

3. from the commencement of the operation of Strike Force Reddan, an electronic database has been used by officers attached to that Strike Force to, firstly, store historic documents which had been obtained in paper form from the investigation in the 1980s and, secondly, store newly created documents arising from the current investigation. That database is called [email protected]; and

4. records and notes made by detectives working with Strike Force Reddan can be found in a number of different places: they can be found on the database in [email protected], in duty books, in notebooks or in daybooks used by individual detectives; they can be found in police databases which are otherwise unidentified, save to say that they represent the databases currently in use in the Police Force upon which individual officers can store documents; they can be found in the content of emails sent by, or to, detectives in the Strike Force; and it is also entirely possible that they can be found on loose sheets of paper used at one time or another, and subsequently either retained in an individual detective's possession or else destroyed.

13. The records kept in the various databases and in the various places which I have just described may, on some occasions, have been replicated and on other occasions may not have been.

14. The evidence about the computer database in the 1980s is quite confined. Detective Woods gave evidence on 8 November 2018 that the contents of the running sheets compiled by officers with the Joint Bomb Task Force, or which the Task Force received from other police, were typed into a computer database. The database was accessed through computer terminals on a boardroom table. It was connected to a “traction-feed-type-printer”. Detective Woods said that the contents of all running sheets were “fed into” the computer. Paper copies were kept of all of the documents entered into the computer. The database kept by the Task Force was capable of being electronically searched by use of key words.

15. Mr Conolly submitted that the fact that the electronic database used in the 1980s has not ever been available to members of Strike Force Reddan is a fact which was only revealed in the course of evidence over the last 2½ weeks. He submitted that this was a fact which ought to have been disclosed at a very early point in time and well prior to the commencement of this trial. It was submitted that the absence of the electronic database will, amongst other things, be relied upon in due course in seeking a direction of law that the tribunal of fact determining whether the Crown has proved the guilt of the Accused beyond reasonable doubt. Specifically, it was submitted that the direction which ought to be given is that as this is a circumstantial case, which is coming to trial after a long delay of some decades from when the crimes were committed, the Court will need to be extremely cautious in finding that the Crown has excluded all reasonable hypotheses consistent with innocence, in circumstances where the police investigation has been shown to be seriously flawed and incomplete.

16. By reference to that anticipated submission and proposed direction, said to be supported by the evidence given to date in the trial, it was submitted for the Accused that he was entitled to see the entirety of the [email protected] database so as to be satisfied that there was no undisclosed relevant material yet to be placed before the Court.

17. Mr Conolly for the Accused put the entitlement in different ways during the course of his oral address. He said that it was important for the Accused to know what evidence was collected by the police in the course of their investigations and that, accordingly, the Accused's lawyers wanted to see what was in the current database - [email protected]. He said that looking at the database would allow the lawyers for the Accused to see other important things - in particular, what was not in it. He submitted, in substance, that the Accused was entitled to examine all records of the police investigation so as to satisfy himself, through his lawyers, about the extent, nature and quality of the police investigation.

18. Mr Conolly submitted that an inspection of the [email protected] database might lead “somewhere” in terms of evidence, but conceded that it might not. He ultimately accepted it might only lead to a better understanding of the work which was done in an attempt to solve the offences before the Court. He also said it might enable the Accused's lawyers to have a better understanding on the issue of continuity of exhibits.

19. Mr Conolly's submissions were put against the background of a submission that he made (which has, I should note, been previously made) that the lawyers for the Accused were of the view that there had been a failure by the police and the Crown to comply with their respective obligations of disclosure. I should note that such a submission has been contradicted when raised in the past by those appearing for both the Crown and the police.

20. On occasions, some cross-examination of police officers in the course of the trial has been directed to the adequacy of disclosure. Putting it generally, the police officers have given evidence that, so far as each of them was concerned, their obligation of disclosure has been rigorously and completely attended to.

Submissions for the Commissioner

21. Mr Singleton for the Commissioner drew attention to the legal principles to which I have earlier referred.

22. He also drew attention to the stage which the trial has reached. It can be noted that the subpoena issued on 31 January 2020 was issued after the conclusion of the Crown case, and after all witnesses (except one expert intended to be called by the Accused in answer to the Crown case) had given their evidence. The only matter presently outstanding in the case for the Accused is the tendering of documents upon which he wishes to rely. The evidence of the one expert to whom I have just referred was completed on Monday 3 February 2020, with the unopposed tender of his report.

23. Based on the stage which the trial has reached, Mr Singleton submitted that the Court could not conclude that the purpose of the subpoena was to obtain evidence which in the end would be part of the evidence in the case. He submitted that the documents sought by the subpoena cannot identify a witness who is likely to be called, that it is unlikely to inform any cross‑examination of any witness, and that the production of the documents could not inform any other remaining application or issue in the proceedings.

24. But Mr Singleton submitted principally that when one has regard to the terms in which paragraphs 2 and 3 of the subpoena are expressed, they are obviously, on their face, so wide as to constitute a fishing expedition. He submitted (and it seems to me as is plain from the words that were used) that the paragraphs included no words of limitation. Rather, to the contrary, the description of the data sought expanded the ordinary description of "data" by including reference to "metadata" and by use of the words "any other structure or organisation imposed on or embedded in either the data or the metadata".

25. Differently put, Mr Singleton submitted that one should understand that what was being sought was not just the contents of the database created by officers in Strike Force Reddan on [email protected], but also data which described how those contents came to be uploaded onto [email protected]. Mr Singleton submitted that one could not get a wider description and a more egregious example of a fishing expedition than that seen in paragraph 2 of the subpoena.

26. Mr Singleton further submitted that, given that any computer containing [email protected] is not being sought nor is there any request, in effect, for electronic access to the [email protected] database, the obtaining of a document or documents in the nature of a user manual as described in paragraph 3 of the subpoena was another example of seeking a document or documents by broad description which has nothing to do with proceedings in the trial.

27. Mr Singleton emphasised that there was no purpose identified in any of the submissions on behalf of the Accused that could be described as a legitimate forensic purpose; rather, all that was described was the purpose of attempting to read data in the database to enable the Accused to find something that might be relevant. Accordingly, Mr Singleton submitted that the subpoena is not valid.

28. In respect of paragraph 1, given that Detective Staples has concluded her evidence, Mr Singleton also submitted that there was no evidentiary or other basis to require the production of all notes, whether in duty books, police notebooks or other books, which she had prepared during the period of her investigation that had not been earlier produced.

29. Mr Singleton also drew attention to the evidence of Detective Russell regarding the potential size of the data stored on [email protected] and the time and effort which would be necessary to examine the entirety of the data to see if there was any proper claim, by way of public interest immunity, client legal privilege or otherwise, that would constrain production or access of the database.

Discernment

30. I have carefully considered all of the submissions that have been put. I recognise that the trial has reached a stage which can be described as very close to its conclusion, which undoubtedly gives rise to a powerful submission that there can be no legitimate forensic purpose remaining to be filled by accessing a large amount of data of the kind set out in the subpoena.

31. I accept that it is open to the Accused to seek to persuade the tribunal of fact that, since there has been significant delay since the seven Events which are the subject of the Indictment occurred and when they were investigated, there is a possibility that there were records which once existed and which no longer exist. Therefore, the nature and quality of the original investigation and any investigations since are matters which need may to be taken into account and to which weight may be given in the consideration by the tribunal of fact of the persuasiveness of the case for the Crown. I express no view as to whether a specific direction is necessary or appropriate at this stage because that may become the subject of debate. However, it is sufficient, in determining this Motion, that I accept that those matters are open to the Accused to be relied upon in seeking to persuade the tribunal of fact in its consideration of any ultimate conclusion.

32. However, the final consideration by the tribunal of fact can be more than adequately achieved by having regard to the evidence which is before the Court. The material sought on this subpoena is in addition to that evidence. As Mr Conolly conceded, an examination of this database may or may not result in evidence being put before the Court as a part of the trial evidence.

33. In my view, the entirety of this subpoena can only properly be regarded as a fishing expedition. That is to say, it is expressed in terms which do not identify with any precision or definition, any document or documents which are being sought. In my view, the description of the documents contained in the schedule to the subpoena bespeaks an attempt to obtain discovery of documents from the Commissioner who, in legal terms, is a stranger to this criminal trial. Even if I am wrong in this conclusion, the submissions on behalf of the Accused have failed to identify expressly and with precision any legitimate forensic purpose for the documents nominated in the schedule. It is to be remembered that it is not sufficient, in establishing a legitimate forensic purpose, to merely assert that documents caught by a subpoena are, or else may be, relevant.

34. It is not open to a party to seek to obtain documents by subpoena merely in order to see whether any documents which are found to exist may be relevant to the issues in the trial and may be of assistance to the Accused with respect to those issues. That is what is occurring with this subpoena. I conclude that such an approach is contrary to principle and must lead to the Court making the order which is sought by the Commissioner.

35. It also follows from this conclusion that the Accused has failed to establish that it is “on the cards” that the documents will materially assist his case. He has not yet seen the documents nor are they of such a kind where the contents can be predicted and a substantive submission made that it would be likely, or else on the cards, that the documents will materially assist the case for the Accused.

36. It is necessary to make a few additional remarks about the documents sought in paragraph 1 of the subpoena. Detective Staples has concluded her evidence. She has been cross-examined on two separate occasions in this Court having been recalled for that purpose on one of those occasions. The subpoena seeking access to her duty books, notebooks and other notes, which she may have created at any time in the course of working with Strike Force Reddan, also falls foul of the legal principles to which I have referred. Mr Conolly has failed to identify any legitimate forensic purpose for the production of those documents. Having regard to the extensive evidence-in-chief given by, and the extensive cross-examination of, Detective Staples, it ought readily be accepted that the production of these documents is something for which purpose the Accused could and should be able to easily identify. He has simply not shown in any submissions that the contents of the documents sought in paragraph 1 of the subpoena would be of assistance to his case in the proceedings nor that it is on the cards that they will so assist.

Conclusion

37. I am satisfied that the subpoena which was issued is invalid.

37. In light of this conclusion, it is unnecessary to consider and determine any issue about the oppressiveness of the subpoena.

Orders

39. I make the following orders:

1. Order that the subpoena issued by the Accused to the Commissioner of Police, NSW Police on 31 January 2020 be set aside in whole.

2. Otherwise dismiss the Notice of Motion filed on 3 February 2020.

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Decision last updated: 12 February 2020