R v Warwick

Supreme Court of NSW|2018-04-23|Before: Garling J

Judgment

On 17 April 2018, the solicitor for the Accused caused a subpoena addressed to Mr Terrence O'Brien, the Director of the Watchtower Bible and Tract Society of Australia ("the Watchtower Society") to be issued.
The subpoena was returnable before the Court on Monday 23 April 2018.
At that time the subpoena was answered by the solicitor for the Watchtower Society and a number of documents were produced which were contained on two discs. There was no objection to access to those documents.
However, the Watchtower Society objected to a number of paragraphs of the subpoena in whole, and to part of a further paragraph.
At the conclusion of the argument, the Court pronounced orders with respect to those objections and indicated that reasons would be published in due course. These are the reasons for the orders pronounced on 23 April 2018.

The Challenged Subpoena

It is convenient to set out those parts of the subpoena to which objection has been taken. They are as follows: "1. … 2. All records of the public reproof, shunning, and disfellowship, removal and hearings before the Judicial Committee of any person during the period 1978 to 1986 with respect to Bethel, and the congregations in Casula, Lurnea and Campbelltown, Forster and the Central Coast, relating to the public reproof, shunning and disfellowship of any person during the period 1978 to 1986. … 9. All records concerning David Winder. … 15. All records of sexual abuse of children, in the Jehovah's Witness Congregations of Casula, Lurnea, Campbelltown, Forster, and Central Coast congregations and at or as reported to Bethel to the extent that those records show the gender, and age of the victim and the period of the assaults and abuse and the name, gender, and position held at Watchtower Bible & Tract Society. 16. The list of the complaints of sexual abuse of children within the Jehovah's Winders Congregations, as reported to the Royal Commission into Institutional Responses to Sexual Abuse including the records of the estimated 1006 cases of allegations of child sexual abuse made against members of the Jehovah's Witnesses in Australia since 1950. 17. Records of the reporting by the Watchtower Society, Australian Branch and congregations of the sexual abuse of children to the Police during the period 1970 to 2105. … 21. All records, tracts, and publications of the Watchtower Bible & Tract Society written, published, printed or distributed during the period 1970 to 1985 in Australia with respect to: (a) Disfellowship; (b) Shunning; (c) Reproofing; (d) The Judicial Committee; (e) Sexual abuse of children; (f) Family Law matters and access to children; (g) Appearance in and participation in court proceedings; (h) Voting; (i) Armageddon and the apocalypse and preparation for Armageddon and the apocalypse; (j) Blood Transfusion; (k) Communications with Police.

Nature of Objection

The Watchtower Society objected to the production of documents in answer to the identified paragraphs, and seeks to have them set aside upon the basis that: 1. there is no legitimate forensic purpose demonstrated with respect to these particular paragraphs; and 2. having regard the breadth of the descriptions of the documents and to the nature of the organisation as one comprising only of volunteers, it would be oppressive to be required to produce them.
If the Watchtower Society is obliged to produce the documents, their lawyer indicated that there may be particular objections with respect to the documents required to be produced on the basis of a number of the privileges which exist under the Evidence Act 1995, including but not limited to religious confessions privilege. She also indicated that there may be an objection to providing the names of informants on a basis akin to public interest immunity.
These particular objections were put to one side to enable the Court to consider the principal objections set out in [9] above.

Factual Context

On 21 July 1985, the Kingdom Hall of the Jehovah's Witness Church at Casula was destroyed when a bomb exploded. One person (Mr Graham Wykes) was killed in that explosion and 13 people were seriously injured. This event is the seventh event relied upon by the Crown and gives rise to Counts 11 to 24 on the Indictment.
The Crown case on all counts on the Indictment arises out of the breakdown of the marital relationship between the Accused and his former wife, Ms Blanchard. There were proceedings in the Family Court of Australia dealing with the custody of their infant daughter, and a number of issues surrounding the matrimonial property.
A full description of the facts and circumstances encompassed by the entirety of the Crown case is to be found in R v Warwick (No.2) [2017] NSWSC 1225. It is sufficient for the purposes of considering the issues relating to the subpoena addressed to the Watchtower Society to concentrate upon the seventh Event, and to set out a summary of the Crown's factual case. This summary is largely drawn from R v Warwick (No.2).
In or about December 1984, Ms Blanchard decided to move from her home in Sydney to live in Forster on the NSW Mid-North Coast with her daughter and her sister. She was motivated to make that move because of the ongoing custody dispute she was having with the Accused over their daughter and which was a continuing source of tension.
She did not inform the Accused that she intended to move, and took steps to ensure that her new address in Forster would not be readily ascertainable by him.
Ms Blanchard's sister was a Jehovah's Witness. The Watchtower Society is the legal entity of that Church in Australia. The congregation of which Ms Blanchard's sister was a member, the Lurnea Congregation, met on Sunday mornings at the Kingdom Hall at Casula. Other congregations of the Church used that hall at different times and on different days.
Ms Blanchard's sister sought help from members of her congregation to assist her and Ms Blanchard with the task of moving to Forster, which occurred on 9 February 1985. A number of members of the congregation, having assisted with loading a furniture van, accompanied Ms Blanchard, her sister and daughter and the van to Forster and there helped to unload the truck and move Ms Blanchard into her new premises.
It is the Crown's case that within about a week of Ms Blanchard moving to Forster, a number of members of the Lurnea congregation received telephone calls from an unidentified male (whom the Crown says was the Accused) seeking information about Ms Blanchard's sister's new address. The details of the address were not provided in those telephone calls.
The members of the Lurnea congregation of the Church were accustomed to meet at the Kingdom Hall at Casula each Sunday morning for their weekly religious observances. Early on the morning of Sunday 14 July 1985, which was a week before the bomb explosion, a member of the Lurnea congregation arrived at the Kingdom Hall in preparation for the weekly gathering. He was the first to arrive and noticed that a window on the southern side of the Hall closest to an internal raised platform had been broken. There appeared to be bloodstains on the concrete outside the building, on the window itself, on the curtains and on the carpet inside the Hall underneath the window.
The trial of apparent blood drops led from the window and into the Kingdom Hall. The trail of blood drops led to a narrow corridor behind a raised platform. From the narrow corridor, the trail of blood drops led to a small storage area behind the raised platform which contained a number of flattened cardboard boxes. Nothing appeared to have been stolen.
After the gathering, the Police were called and observed the blood trail. The broken window was repaired on the following day.
One week later, on Sunday, 21 July 1985, when the members the congregation arrived, it was observed that the very same window as the week before had been broken again. Nothing was obviously stolen, nor was anything obviously out of place.
About 100 churchgoers attended the gathering. It commenced about 9:30am, which was the usual time. At about 10am a guest speaker, Mr David Winder, was delivering a lecture from the raised platform area. Whilst he was doing so, a large explosion took place from underneath that area. The explosion was powerful enough to, and did, destroy the Kingdom Hall and cause serious injury to many of the members of the congregation. One person, Mr Graham Wykes, who had been sitting in the middle of the Kingdom Hall in the second row from the front, was killed. Thirteen members of the congregation sustained grievous bodily harm.
The explosive device been placed underneath the raised platform. Access for that purpose was obtained from the narrow corridor behind the raised platform area.
It is the Crown's case that the Accused was responsible for this explosion.
There are other circumstances relied upon by the Crown to prove the involvement of the Accused with this particular event. Shortly put the Crown's case is that the Accused was motivated to take revenge upon members of the Lurnea congregation of the Jehovah's Witness Church because they had assisted his former wife and daughter to move away from Sydney, and had assisted in concealing their new address from him, thereby denying him access to his daughter.

Relevant Legal Principles

It is appropriate to set out the legal principles which apply to the consideration by this Court of the enforcement of a subpoena, or else, the issue of whether the subpoena ought to be set aside in whole or in part.
I note that as this is a criminal case, it is appropriate to adopt a more liberal approach to these principles "… in order to ensure, so far as possible, against the risk of injustice to an accused person": Carroll v Attorney-General for NSW (1993) 70 A Crim R 162 at 170 per Kirby ACJ; Alister v The Queen [1984] HCA 45; (1984) 154 CLR 404 at 456 per Brennan J.
It is a misuse of the process of issuing of subpoenas to embark upon a "fishing expedition" in the hope that something might possibly turn up that would be of utility in a criminal trial. In order to avoid such a conclusion, the subpoena needs to be drafted with some precision: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573ff, where Jordan CJ said: "A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum 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. A stranger to the cause ought not be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant …"
Assuming that the terms of a subpoena do not show that the documents being sought constitute a fishing expedition, then, it is necessary in this case for the Accused, upon whose behalf the subpoena was issued, to identify "… expressly and with precision …" the legitimate forensic purpose for the documents before production will be required or access permitted: R v Saleam (1989) 16 NSWLR 14 at 18C per Hunt J; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681F per Hunt CJ at CL.
A legitimate forensic purpose is not established by the mere proposition that the documents caught by the subpoena are, or may be, relevant: Carroll at 181, where Mahoney AP said: "But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them … the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. 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."
See also Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 at [59]-[63] per Beazley JA (James and Kirby JJ agreeing).
What must be established is that it is "on the cards" that the documents will materially assist the case of the Accused: Alister v The Queen per Gibbs CJ at 414; R v Saleam (1989); R v Saleam [1999] NSWCCA 86, at [11] per Simpson J (with whom Spigelman CJ and Studdert J agreed). There, her Honour said: "The principles governing applications of this kind 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 which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."
See also Perish v R [2015] NSWCCA 98 at [30] per RA Hulme J.

Submission - Legitimate Forensic Purpose

The lawyers for the Accused initially identified the legitimate forensic purpose in this way: "The purpose is there are records that haven't been seen by anyone in relation to the bombing of the church and records that pertain to people who would have a motive. That's the purpose."
Later in the course of submissions, the purpose was refined. With respect to paragraph 2 of the Schedule to the subpoena, it was put that people falling into the various categories described were those likely to have grudges against, or a hatred of, the Church. It was submitted that Police records of the investigation showed that one approach undertaken by Police was to identify, with respect to each of the events, including this event of bombing the Kingdom Hall, any person who had a particular grudge against the Jehovah's Witnesses. Ultimately, the legitimate forensic purpose was put in this way: "So, … both the Police and obviously the defendant's investigation of those who have a grudge or hatred of the Church at the time of the bombing, or records that reveal that they would have, even though those records are some months later. The purpose of issuing this paragraph of the subpoena is to capture those records."
The Accused advanced the same legitimate forensic purpose with respect to the contents of paragraphs 15 to 17 (inclusive).
With respect to paragraph 9, the lawyers for the Accused identified that Mr Winder was the person speaking at the gathering at the time of the explosion. He was standing on the platform, over the bomb, when it exploded. The Accused's lawyers submitted that it was unclear from the documents which had been provided to them the extent to which the Police had investigated whether Mr Winder was a particular target of the bomb which exploded. Records were sought to assist in identifying whether there existed any material demonstrating that he was a possible target.
With respect to that part of paragraph 21 to which objection was taken, it was submitted that, as part of the defence of the Indictment, it would be necessary, or else appropriate, for the Accused to understand, and be able to put before the jury, the context of the historical period between 1980 and 1985. It was submitted that that was a context in which threats were made against Kingdom Halls in various parts of Australia. It was said that "… it is necessary to identify the basis on which the Kingdom Hall was exposed to threats, grudges and other hateful responses …" in terms of each of the particularised areas in paragraph 21.

Discernment

It is appropriate to consider, initially, paragraph 2 and paragraphs 15 to 17 (inclusive) of the Schedule to the subpoena together, because the legitimate forensic purpose was said to be the same in respect of these paragraphs.
Paragraph 2 commences with the words "All records of". The balance through various descriptions includes, in effect, anyone who has been the subject of some form of disciplinary action in the period from 1978 to 1986.
Paragraph 15 uses similar introductory words. It is not limited by any period of time and seeks material identified by relation to any victim of sexual assault and any person who is alleged to be responsible for such assaults. The records are limited to the named congregations.
Paragraph 16 seeks the records of complaints of sexual abuse within any Jehovah's Witness congregations anywhere in Australia, and in a number which, according to the terms of the paragraph, must exceed 1,000 such cases. The only time constraint is that the complaints are made after 1950. The end time for such complaints is unstated, and so would be taken to be the return date of the subpoena.
Paragraph 17 seeks records of reports to Police of "sexual abuse of children" relating to the Watchtower Society and its entire congregation across a 45 year period commencing in 1970.
These words and other features demonstrate that what is being engaged in is a fishing expedition. These paragraphs of the subpoena are in terms attempting to find out whether there is anything of relevance in any document which may possibly cast light on the events in question, even peripherally.
These paragraphs convey the clear impression that by this subpoena, the Accused is engaged in a very broad exercise of seeking to establish the existence of documents which may or may not confirm anything of relevance to the facts likely to be touched on during the trial. The search is being conducted to see if there might be anyone else to whom reference might be made in a document which might exist, who might have a reason to have carried out the bombing of the Kingdom Hall.
Even if these paragraphs could be narrowed to reflect a rational time period or other appropriate geographical limitation, the Accused has not demonstrated that there is any legitimate forensic purpose in seeking these documents.
The mere fact that there may be records which may relate to the bombing of the Kingdom Hall which have not been "seen by anyone", and which it is speculated may "pertain to people who have a motive", does not establish a legitimate forensic purpose. If anything it serves to demonstrate that the exercise being engaged in in these paragraphs is a fishing expedition.
Even as the submission of legitimate forensic purpose was refined, it became clear that what was being sought was an attempt to identify any individual who may have had a grudge or hatred against the Jehovah's Witnesses generally. Even assuming such a person could be identified in the records that would not mean that, of itself and without more, such identification would constitute a legitimate forensic purpose. It would have to be demonstrated that it was "on the cards" that the identification of such a person would have a connection to the bombing of the Kingdom Hall. In circumstances where it is apparent that Police investigations had sought to canvass whether such a person could be identified, and in the absence of some greater particularity based upon that Police investigation, it is not possible to conclude that the Accused has demonstrated that it would be "on the cards" that the documents sought to be produced, assuming them to be properly defined, would demonstrate a reason to order their production.
These paragraphs should be set aside as constituting an impermissible fishing expedition and because no legitimate forensic purpose has been demonstrated.
Paragraph 9 referred to Mr Winder. There is no material put before the Court on the return of this subpoena to indicate that anything that Mr Winder may or may not have done, or any person's attitude to Mr Winder, may have had anything to do with the Kingdom Hall bombing. The submissions failed to identify any legitimate forensic purpose for the production of this category of documents.
This paragraph will be set aside.
A similar conclusion can be readily reached with respect to paragraph 21 as was reached with respect to paragraphs 2 and 15 to 17 inclusive. The seeking of all records in relation to the sub-topics identified, in the way in which they have been identified without any reference to any of the issues likely to arise in the trial, simply amounts to a fishing expedition. The Accused was unable to identify with any clarity, any piece of information which those documents were likely to produce. In the absence of such identification, even by subject matter, there has been no demonstrated legitimate forensic purpose. That part of paragraph 21 which is objected to will be set aside.

Summary

On 23 April 2018, I made orders setting aside the subpoena addressed to the Watchtower Bible and Tract Society of Australia insofar as it contained paragraphs 2, 9, 15-17 (inclusive) and part of paragraph 21. The reasons above are those which cause me to make that order.

Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. 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: 18 February 2020

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