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

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.
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

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 e@gle.i 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 e@gle.i.”

Notice of Motion to Set Aside the Subpoena

In support of the Notice of Motion, the Commissioner relied upon the affidavit of Detective Mathieu Russell sworn 3 February 2020.
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.
At the commencement of today's proceedings,…

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.89)

Details

AGLC: R v Warwick (No.89) [2020] NSWSC 43
Case: [2020] NSWSC 43
Decision Date: 04 February 2020

CaseChat Overview and Summary

The case of R v Warwick (No.89) involved a defendant, Warwick, who was subject to a subpoena seeking a wide range of documents and records. The nature of the dispute was centred around the validity and scope of the subpoena, which Warwick contested on the grounds that it constituted a "fishing expedition" and lacked any legitimate forensic purpose. The matter was heard in the Supreme Court of Victoria. Warwick sought to have the subpoena set aside, arguing that it was overly broad and would require him to incur significant costs in producing the documents, many of which were irrelevant to the case at hand.

The legal issues the court was required to decide included whether the subpoena was within the scope of proper forensic investigation, and if it constituted an abuse of the court's process by being overly broad and lacking a legitimate purpose. The court had to determine whether the subpoena was a legitimate tool for obtaining evidence relevant to the case or if it had been issued as a means to harass or unduly burden the defendant. The central question was whether the potential benefits of the evidence sought outweighed the burdens imposed on the defendant.

The court found that the subpoena was indeed overly broad and lacked a legitimate forensic purpose. It held that the subpoena was not narrowly tailored to the needs of the case and constituted an abuse of the court's process. The court concluded that the subpoena was a "fishing expedition," as it sought documents that were not directly relevant to the issues in the case. As a result, the subpoena was set aside in its entirety. The court emphasised that while the production of documents is an important aspect of criminal procedure, it must be balanced against the rights of the defendant not to be unduly burdened or harassed. In this case, the subpoena failed to strike that balance and was therefore invalid. The court ordered that the subpoena be set aside and that Warwick was not required to comply with it.

Orders