R v Darcy

The subpoena in issue

1. On 11 March 2021, the solicitor for the accused filed a subpoena directed to the "NSW Police Force" requesting production of amongst other things: (3) All documents that record the investigations of Sergeant Anthony Smith referred to in his statement dated 18 December 2017, including but not limited to any of the following records: (i) Computerised Operational Policing System "event" "incident" and "occurrence only" entries; (ii) Case Management System information; (iii) Information Report as referred to in [7] of the statement; and (iv) Systems Administration Audit Report (SAD923P) recording access to COPS records relating to the accused CNI [62397546] for the period 14 May 2015 to 1 August 2017.
2. Discussions to narrow the issues about the reach of the subpoena came to an impasse in respect of paragraph 3(iv) and the Police have sought an order that this sub paragraph be set aside because it is without legitimate forensic purpose.
3. In argument on 8 April 2021, Mr Broadbent confined the scope to the period October 2016 to 1 August 2017, (the period corresponding to the statement of Sgt Smith) rather than the initially sought period: 14 May 2015 to 1 August 2017.

Relevant principles - Legitimate Forensic Purpose

1. The principles are not complex. In Carroll v Attorney General (NSW) (1993) 70 A Crim R 162, Mahoney AP said (at 181-182): "... It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding."
2. As stated by Beazley JA (as she then was) in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [64]: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms: The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was".
3. In Fantakis v Local Court of New South Wales [2020] NSWSC 931, Hoeben CJ at CL stated the following in relation the requirements for establishing a legitimate forensic purpose at [35]: "It will therefore ordinarily be necessary for the subpoenaing party to identify the issue or issues in dispute at trial, what the subpoenaing party's case will be on that issue or those issues, how the subpoenaed documents will assist the subpoenaing party in his case and what are the grounds for believing that the documents will in fact assist."
4. In Mann v Commissioner of Police [2020] NSWSC 369, Adamson J at [25] said: "Once the ambit of a subpoena is put in issue, the issuing party is obliged to identify a legitimate forensic purpose for which the documents are sought. It is not sufficient that the documents falling within the ambit of the subpoena could, or might be, relevant, it must actually be 'on the cards'. Subpoenas are not to be used for the purposes of "fishing expeditions". And at [31]: "Further, the identification of "legitimate forensic purpose" is a matter which is peculiarly contextual. Thus it is not productive to seek to draw conclusions from the authorities beyond the statements of general principle expressed in cases such as Chidgey". And at [41]: "The test, which was authoritatively stated in Chidgey, was the test that her Honour applied. The test required an affirmative answer to the following two questions: first, has the party at whose request the subpoena was issued identified a legitimate forensic purpose for the documents; and, second, was it "on the cards" that the material would materially assist the accused? It was not sufficient that there was a reasonable chance that the material, if produced, would assist the defence case in some way: this was the test formulated by Adams J in Conolly which was expressly disapproved in Chidgey".

The asserted legitimate forensic purpose

1. Counsel for the accused, Mr Broadbent submitted that the reputation of the accused is a "key plank in the prosecution case" and the attitude of the police to her is relevant to that issue. He argued that "on the cards" at this trial are issues of the extent and frequency of investigations of the accused prior to the death of Mr Dunbar, the attitude of police to the accused prior to the death of Mr Dunbar and the impact of this on the police investigation and so the defence should be able to assess the account of Sgt Smith which has so far been only partly disclosed in the material provided in the Crown brief and in response the other parts of the subpoena.

The evidence tendered on the application

1. Two affidavits of Ms Randall solicitor for the accused, affirmed 29 March and 9 April 2021, were tendered in opposition to the application. Those affidavits set out the various relevant police investigation documents disclosed so far, the statement of the vet, Ms Grieg dated 25 July 2017 and the statement of the deceased's friend Mr Wellings setting out the concerns and suspicions that he held and told police about prior to the deceased's death.
2. The Police relied upon an affidavit of Ms Dadwal that annexed a copy of the subpoena in issue and the statement of Sgt Smith.

Decision

1. The material sought in subparagraph 3(iv) of the subpoena is limited to a catalogue of searches undertaken about the accused in a particular time period. How such information is of any evidentiary value or relevance to the accused had not been identified in evidence or in argument.
2. How, when or why the police began to look at the accused's behaviour towards the deceased is not an issue in this trial. The fact that a senior police officer noted concerns of members of the public about the welfare of the deceased based around observed behaviours on the part of his domestic partner is not surprising and indeed, if such concerns were ignored, would be suggestive of police failing to act on relevant information.
3. It seems Sgt Smith's concerns escalated in the period just before Mr Dunbar died, but his investigative responses to reports he received from members of the public prior to Mr Dunbar being found dead is not an issue in this trial. Sgt Smith's log of investigative steps is not germane or relevant to the issues in the trial.
4. What is in issue is whether the Crown can demonstrate beyond reasonable doubt that the accused intended to and did kill Mr Dunbar.
5. Further, the documents sought by 3(iv) of the subpoena is a classic fishing expedition by the accused to see if she can get hold of a document or documents on the off chance that something may assist her somehow to attack the police investigation of her at some level.
6. There has been no basis shown for a belief that the material sought would assist the accused in any respect, and as is clear on the authorities fishing expeditions are not permitted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2021