R v Warwick

Supreme Court of NSW|2018-05-01|Before: Garling J

EX TEMPORE Judgment

On 17 April 2018, the solicitors for the accused caused to be issued a subpoena addressed to the Commissioner of the Australian Federal Police ("AFP") which was returnable on 23 April 2018.
At that time, by a Notice of Motion filed in court, the Commissioner for the AFP sought to set aside the subpoena for production. Submissions filed on behalf of the Commissioner at that time identified the Commissioner's argument as being that the subpoena lacked specificity, was too wide and constituted an impermissible fishing exercise. The Commissioner submitted that the subpoena sought discovery which was impermissible. Further, the Commissioner submitted that the accused had no legitimate forensic purpose in seeking production of the documents covered by the subpoena. The Commissioner also submitted that the accused had not established that it was "on the cards" that any of the documents sought by the subpoena, assuming they existed, would materially assist his case. The Commissioner finally submitted that it would be oppressive to require the Commissioner to comply with the AFP subpoena in its current terms.
In support of the Notice of Motion, the Commissioner has provided, as at 1 May 2018, evidence which identifies from file indexes, which have been searched, a series of specific files. It will be necessary to return to those identified files in due course.
The evidence, with respect to the first five events the subject of the subpoena, being the murder of Stephen Blanchard, the murder of Justice Opas, the attempted murder of Justice Gee, the bombing of the Family Court at Parramatta, the murder of Pearl Watson and the attempted murder of Justice Watson, is that the AFP holds no files presently which relate to those matters. As well, with respect to the seventh event which is the subject of this subpoena being the bombing of the Kingdom Hall and the murder of Mr Graham Wykes, the AFP has not been able to locate any specific files.
With respect to the sixth event, namely the attempted murder of Mr Garry Watts in 1984, the AFP has identified two files which first came into existence in 2010 and which relate to a threat against a magistrate and a federal judge by an identified individual.

Relevant Principles

The principles against which the Notice of Motion is to be considered are well known. It is a misuse of the process of issuing a subpoena to embark upon a fishing expedition in the hope that something might turn up that would be of utility in a trial, whether criminal or civil.
As was said in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573, to avoid a conclusion that a subpoena is a fishing expedition a subpoena needs to be drafted so as to identify the documents required with some precision. In that case, Jordan CJ held that it was 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, because they are not a party to the proceedings, would not be otherwise liable to make discovery.
Even if the terms of a subpoena did not constitute a fishing expedition, it is necessary that the person who issued it, if challenged, identifies a legitimate forensic purpose for the documents before production would be required: see R v Saleam (1989) 16 NSWLR 14 at 17. The Court of Appeal held in Carroll v Attorney-General of New South Wales (1993) 70 A Crim R 162 at 181 that a legitimate forensic purpose is not established by the mere proposition that documents caught by a subpoena are or may be relevant; rather, what must be established is that it is "on the cards" that documents will materially assist the case of the accused: see R v Saleam [1999] NSWCCA 86 at [11] per Simpson J (Spigelman CJ and Studdert J agreeing).

Discernment

The schedule to the subpoena in question is of the greatest width. First, the definition of the document which is sought to be produced is both comprehensive and extremely broad with the consequence that the definition of what constitutes documents occupies seven lines of various examples of what may constitute documents. Secondly, subparagraph (a) of the schedule summarises what events the records sought by the subpoena address. Whilst the first eight subparagraphs are defined with reasonable precision in that paragraph, the same conclusion cannot be reached with respect to subparagraph (ix) which uses the terms "the investigation of and inquiries concerning other suspects in relation to the above", which is a reference to the eight specific events identified.
That this subparagraph is of great and ill-defined breadth is confirmed by an email from the lawyers for the accused to the Australian Government Solicitor's Office in which 54 named individuals are referred to as being people who the lawyers for the accused would regard as falling within the description "other suspects". The lawyers in that email do not restrict the term "other suspects" to only those 54 people but note that the term included those named.
I am persuaded that the lack of specificity and the generality in which subparagraph (ix) of paragraph (a) is expressed means that it is nothing more than a fishing expedition and is entirely impermissible. In my view, leaving aside paragraph 17 of the subpoena, the balance of the paragraphs of the subpoena are phrased in a way and use words which are plainly indicative of a fishing expedition. There is simply no specificity at all in those paragraphs. As well, no time limit is imposed for the documents sought.
The fact that the paragraphs are expressed in such wide terms means that, when it comes to consideration of whether there is a legitimate forensic purpose and whether it is "on the cards" that the records sought would be likely to materially assist the accused's case, it is simply impossible to reach any conclusion of the kind which would suggest that a legitimate forensic purpose exists and has been disclosed.
Indeed, the submissions of Ms Ramsay, which were thorough and comprehensive, suggest to me by their terms that the exercise embarked upon by the lawyers for the accused with respect to this subpoena is an attempt to ascertain whether any records exist and, if so, what they might say, and whether they might, depending on the answer to those questions, reveal anything which may be or else is likely to be, of assistance to the accused. Those submissions did not persuade me of the existence of a legitimate forensic purpose for the production of the documents.
Accordingly, I would not be prepared to permit the schedule to the subpoena in respect of paragraphs 3 to 16 inclusive to stand. It should be set aside.
However, that is not entirely the end of the matter. It seems to me, in light of the evidence that is before me, rather than upholding the entirety of the Notice of Motion, and in particular in circumstances where paragraph 17 of the schedule to the subpoena may be amended in a way which I will shortly describe, ought be permitted to remain. Therefore, I should order that the schedule be set aside but that it be amended in the way shortly to be described.

Orders

I make the following orders: 1. Set aside the subpoena to produce addressed to the Commissioner of the Australian Federal Police of 23 April 2018 in its current form save, and except for, the following amendments: 2. Permit paragraphs (a)(i)-(viii) inclusive. 3. Permit paragraphs 1 and 2. 4. In lieu of paragraph 3-16 inclusive, which are not permitted, order that schedule be amended so as to require the production of the files of the Australian Federal Police with the following designations: 1. File 1988/00000759 entitled "Family Law Court Occurrence Sheets"; 2. File 1987/00000707 entitled "Family Law Court Parramatta Death Threats on Staff Members"; 3. File 1987/00001929 entitled "Parramatta Law Court Alleged Assaults"; 4. File 1988/00001275 entitled "Family Law Courts Parramatta Wilful Damage to Property"; 5. File 1988/00002226 entitled "Family Law Courts - Bomb Threat Parramatta"; 6. File 1985/00000071 entitled "Mauri Hall/Paulo DOB 17/8/34 Miscellaneous Enquiry"; 7. File 1989/00000132 entitled "Maher, Clare"; and 8. File 1991/00006982 entitled "Fuller, Virginia". 1. Paragraph 17 of Exh PTL should be amended so as to insert the words "AFP prepared for the" immediately before the word "Eastman" where it first appears; and secondly, in subparagraph (4) insert the following "Mr Robert Barnes, Professor Zitrini, Dr Zeichner, Professor James Robertson, given to" between the words "of" and "the" of paragraph 17; 2. Direct that the documents so identified be produced as soon as possible, but no later than Tuesday 8 May 2018 at 10am. 3. Grant liberty to apply on 1 days' notice with respect to any variation of these orders.

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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