R v Warwick (No.29)

1. [1]

   In two previous judgments, namely R v Warwick (No.16) [2018] NSWSC 733 and R v Warwick (No.28) [2018] NSWSC 812, I considered and dealt with two Notices of Motion filed by the Commissioner for the NSW Police with respect to subpoenas served upon him by the Accused in these proceedings.

2. [2]

   The Motion now before the Court, filed on 12 June 2018, deals with a further subpoena addressed to the Commissioner of the NSW Police, which was filed on 1 June 2018. That subpoena has been marked Exh TA so as to enable it to be readily identified.

3. [3]

   In R v Warwick (No.12) [2018] NSWSC 522, between [28]-[35] I set out concisely the relevant legal principles applicable to considering whether or not a subpoena ought be set aside in whole or in part. There is no need to repeat those principles here, but I do propose to supplement them by some further comments.

4. [4]

   As well, a full description of the facts and circumstances contained within the Crown case is to be found in R v Warwick (No.2) [2017] NSWSC 1225 and in the opening of the Crown delivered on 15 May 2018.

5. [5]

   The disposition of the issues presently to be determined on this Motion is addressed upon the basis that the previous judgments referred to have been read as elucidating principles and as well, the facts and circumstances which are relevant.

Legal Principles

1. [6]

   It is convenient to refer to some further matters in addition to the legal principles earlier discussed. One of these matters is the decision of Adams J in Roads and Traffic Authority of NSW v Conolly [2003] NSWSC 327; (2003) 57 NSWLR 310. This authority was relied upon by the Accused.

2. [7]

   The decision was cited as authority for the proposition that when a party is addressing that part of the issues necessary to be dealt with in order to uphold the subpoena, namely that it is “on the cards” that the documents sought would materially assist that party, will be sufficient if a legitimate forensic purpose has been identified and that purpose is accompanied by “… the reasonable chance that the documents in question might support the defence …”.

3. [8]

   Here, the Accused submitted that the subpoena which has been issued on his behalf satisfied this test.

4. [9]

   However, I note that the Court of Criminal Appeal in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, doubted the correctness of that test. Beazley JA (with whom James and Kirby JJ agreed), said that the likely effect of the decision in RTA was to create a situation whereby once relevance was established, there would almost always “be a reasonable chance” that the material sought would assist an applicant to establish a case proposed to be made at trial. Her Honour said, by reference to earlier decisions of Alister v R [1984] HCA 85; (1984) 154 CLR 404, Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 and R v Saleam [1999] NSWCCA 86 that “something more than that is required” and that the approach in RTA should not be followed.

5. [10]

   I am bound by the approach set out by the Court of Criminal Appeal in Chidgey and, accordingly, will apply the principles there discussed.

6. [11]

   The Commissioner drew attention to a decision of Barr AJ in Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498. This decision dealt with a question of whether a subpoena seeking documents relating to a warrant issued under the Listening Devices Act 1984 (NSW) ought be permitted.

7. [12]

   Barr AJ, at 504, noted that:

8. [13]

   His Honour drew attention to R v Saleam [1989] 16 NSWLR 14; (1989) 39 A Crim R 406; and also to Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681; (1994) 75 A Crim R 8 at 21.

9. [14]

   At 505, a concise statement was made as to the appropriate law applicable. Barr AJ said:

Terms of the Subpoena

1. [15]

   The subpoena marked Exh TA was issued at the request of the Accused on 1 June 2018. The Schedule to the subpoena commences by identifying the seven distinct events of criminality relied on by the Crown with respect to the offences set out in the Indictment (“the Events”). It also identifies three Coronial Inquiries into the deaths of individuals associated with those seven Events, and the examination of Family Court files, carried out at the Parramatta Family Court.

2. [16]

   The Notice of Motion seeks to challenge only a number of the paragraphs in the subpoena. As well, correspondence between the parties has resulted in the lawyers for the Accused limiting some of the categories which are challenged.

3. [17]

   In light of the approach taken by the parties in the course of their submissions, it is appropriate to set out the paragraphs which are challenged, together with any limitations which the lawyers for the Accused have indicated that they are prepared to accept.

4. [18]

   The first paragraph in the Schedule is to the following effect:

5. [19]

   In correspondence, it was noted that a Handbook was available in the library of the NSW Police Force, and one is available online, which seems to be dated 2016.

6. [20]

   The Accused limited sections of the Handbook to 45 subject matters, each of which seems to be addressed by a separate section in the Handbook.

7. [21]

   Paragraph 2 of the schedule to Exh TA is also challenged. That paragraph is in the following terms:

8. [22]

   Thereafter follows the names of 20 Police officers who, it appears, have had roles to play in the investigations into the Events carried out during the 1980s and then when the investigations recommenced in about 2013.

9. [23]

   Correspondence from the Crown Solicitor’s Office identified the fact that this paragraph in this form, appears to be excessively broad and sought a narrowing of the paragraph “… so as to refer to particular topics or tasks conducted during the course of the investigation”. It also identified the absence of any legitimate forensic purpose.

10. [24]

    In correspondence, the solicitors for the Accused said:

11. [25]

    Paragraph 3 of the subpoena referred to the same 20 identified police officers and sought the following:

12. [26]

    When challenged about the legitimate forensic purpose of these records, the solicitors for the Accused responded by saying:

13. [27]

    Paragraph 4 is a very lengthy paragraph. It is unnecessary to reproduce it in its entirety. It contains 11 sub-paragraphs covering a range of methods, practices, standards and procedures in place during the years nominated.

14. [28]

    The description of the documents required in the Schedule to Exh TA was in the following form:

15. [29]

    That introduction was modified by correspondence to the following:

16. [30]

    The purpose for which these documents were required was set out in correspondence in the following way:

17. [31]

    Paragraph 9 is also objected to, and is in the following form:

18. [32]

    Annexure A to the subpoena consists of the document produced by the Crown, at the direction of the Court, containing the order of witnesses for trial. It refers to 278 witnesses. Some of these witnesses are noted as being deceased, but are included on the list so as to enable their evidence to be tendered chronologically and in a manner appropriate to the unfolding of the trial.

19. [33]

    The Commissioner drew attention to this paragraph in the letter of 12 June 2018 in these terms:

20. [34]

    The response from the solicitor for the Accused was in the following terms:

21. [35]

    Paragraph 10 seeks to obtain each application for a search warrant for the premises of the Accused, his father’s premises and his workplace including the affidavits in support, emails and communications and the search warrants actually issued.

22. [36]

    The purpose of the search warrants was identified in this way:

23. [37]

    Paragraphs 15 to 18 seek a range of records, including emails, file notes, reports, memorandums and texts involving the identification of the Police officers conducting a search during 2018 of archived material and electronic records.

24. [38]

    The Commissioner sought an identification of the legitimate forensic purpose for the paragraphs of the subpoena. No such purpose was specified in the correspondence from the solicitors for the Accused.

25. [39]

    Finally, paragraphs 19 and 20 seek records of investigations of Jeffrey David Evans and Maureen Evans during the period 1980 to 1995 and any records of interviews undertaken in February 2015.

26. [40]

    The records of investigations are said to relate to harassment of, threats against and mail tampering of parcels and posts of Mr Evans, and any security arrangements or recommendations with respect to security arrangements made by the Police for the protection of Mr and Mrs Evans.

27. [41]

    Mr and Mrs Evans were the owners of the premises at which Event 6 occurred. They were not living there at that time.

Further Evidence

1. [42]

   At the hearing of the application on the issues relating to setting aside the subpoena, other than whether the obligations created by it were oppressive, the Accused read the affidavit of Elizabeth Ramsay of 14 June 2018. That affidavit, together with Ms Ramsay’s oral and written submissions, added to the contents of the subpoena and the exchange of correspondence.

2. [43]

   The affidavit identified some specific issues with respect to production of documents, and some specific issues about identified individuals.

Discernment

1. [44]

   It is convenient to determine each of these paragraphs individually.

2. [45]

   These paragraphs can be considered together, because what they seek is the contemporaneous Police handbooks, standard operating procedures, manuals or guidelines directed to Police officers in the undertaking of their duties. It is these documents against which it is intended by the solicitors for the Accused to measure, or test, the various investigations and other Police enquiries and conduct of those involved in both the investigation of the Events at the time they occurred in the 1980s, and during the re-investigation of those Events commencing in 2013.

3. [46]

   The substance of the forensic purpose identified by the Accused with respect to these paragraphs was to examine whether the Police officers from time to time complied with their own procedures.

4. [47]

   It was submitted that one of the issues in the proceedings is the adequacy of the manner in which the Police investigated the scene of each of the bombings, collected exhibits and pursued their investigations. The Accused submitted that, to the extent that the Police did not comply with requisite handbooks and manuals, that would be material for the cross-examination of those Police officers.

5. [48]

   When pressed in oral submissions to identify the specific purpose of these paragraphs, Ms Ramsay made this submission:

6. [49]

   It was later put that it was “forensically necessary for the cross-examination of the Police witnesses and experts”.

7. [50]

   These submissions confirm what is inherent in the terms of these paragraphs in the subpoena, namely that the Accused is engaged on an exercise of attempting to obtain documents by way of subpoena where there is no clearly identified forensic purpose for the material. The fact that the material may be able to be used in cross-examination of a range of possible witnesses is not of itself sufficient to uphold the terms of a subpoena.

8. [51]

   The submissions of the Accused did not identify with any particularity any individual Police officers in respect of whom specific conduct issues relating to competency or credibility would be likely to be raised at trial.

9. [52]

   Rather, as the correspondence between the parties demonstrated, the contents of paragraphs 1 and 4 were asserted to be relevant with respect to a broad-ranging enquiry about the conduct of Police investigations either in the 1980s or else more recently.

10. [53]

    The submissions with respect to these two paragraphs did not embrace any particularity at all, but were rather pursued on the basis that it was open to the Accused to obtain documents if the documents may be relevant to the cross‑examination of one or more of the Police witnesses and experts.

11. [54]

    As the authorities show, mere relevance is not enough. Having regard to issues raised, it must be “on the cards” that the documents will materially assist the case for the Accused. The submissions did not rise to the necessary threshold for the Court to be satisfied that these paragraphs of the subpoena should be upheld.

12. [55]

    Accordingly, these paragraphs of the subpoena will be set aside.

13. [56]

    Paragraph 2 sought the production of notebooks of a range of nominated Police officers.

14. [57]

    The purpose for those documents was expressed, again in generality, in the correspondence between the parties. That purpose was repeated in the oral submissions.

15. [58]

    It is apparent from the contents of the correspondence that it is the Accused’s intention to assess the competency of the Police investigation, to in effect to attempt to recreate where particular officers were or were not at any particular time, and to establish what they were doing at those times with respect to the investigation of these criminal Events.

16. [59]

    In part, that exercise will be undertaken on the basis of the documents produced by way of cross-examination of the Police and of lay witnesses in relation to circumstances in which their statements were taken.

17. [60]

    Specific circumstances were identified with respect to investigations undertaken by Police of one possible suspect, Mr Tim Bristow, and his associates, and with respect to Mr Khaled Hamze (or Hamzy). The material tendered to the Court in respect of these individuals satisfies me that the Accused has a legitimate forensic purpose for obtaining the relevant Police notebooks or statements or the results of other investigations because of the apparent role that these people played at the time of the Events taking place.

18. [61]

    However, with one exception, to which it will be necessary to address, the submissions of the Accused fail to identify with particularity any other aspect of the Police investigation as to which the production of these notebooks would directly relate. The submissions neither identify the nature of the material which it is anticipated would be produced, nor the way in which it would be “on the cards” that the documents caught by this paragraph would assist the Accused’s case.

19. [62]

    The only other matter to which it is necessary to make specific reference is the submission that the circumstances surrounding the change of recollection of Ms Judy Morier between statements is of such significance that all of the surrounding material from Police notebooks ought to be produced.

20. [63]

    To the extent that that issue is relevant, and at the moment that is not apparent, the mere fact that a witness has changed their recollection of a particular date or of when an event occurred, is not immediately indicative of that change being as a consequence of any interaction between a Police officer and the witness.

21. [64]

    The submissions put with respect to this issue were, in my assessment, unconvincing. The fact that the witness has made a change in dates seems to be apparent from successive statements. The witness can be cross‑examined about those matters.

22. [65]

    If it becomes apparent before any cross-examination that there are in existence records which would throw light on that matter, and in a way which would make it on the cards that their production would materially assist the Accused’s case, then the matter can be addressed at that point.

23. [66]

    This paragraph will be accordingly set aside, but for the two specific areas which I have noted.

24. [67]

    Paragraph 3 seeks documents which, in effect, relate to identification of the Police notebooks that were issued over that period. These records would, as it seems to me, be regarded as no more than providing evidence of an audit or a check against which the production of notebooks could be measured for adequacy.

25. [68]

    This paragraph rises no higher than the previous paragraph at best. At no time was it demonstrated that there was any reason for the material here to be produced. In my view, on the basis of the material presently available, the contents of that paragraph are entirely irrelevant, and the paragraph should be set aside in its entirety.

26. [69]

    Paragraph 9 is a broad-ranging enquiry with respect to all of the witnesses who are scheduled to give evidence. The submissions by the Accused identified that what was being sought was, in effect, the source documents or the basis for the compilation of running sheets which had been annexed to, or else referred to in, the statements of witnesses. The submission was made that because the running sheets were not the original records, the Accused was entitled to see the original records to establish the authenticity and accuracy of them.

27. [70]

    The purpose, as it seems to me, for the Accused with respect to the documents sought in this paragraph, was to enable the Accused to examine whether, and if so to what extent, it may be in the Accused’s interest to put in issue the evidence of one or more the Crown witnesses listed in the Order of Witnesses.

28. [71]

    The problem with this broad approach is that, so it seems from the opening, although only a partial one, of the solicitor for the Accused, the happening of the Events themselves is not in issue. What is in issue is whether the Accused had any motive at all to commit these offences, whether he had the knowledge, skill and capacity to commit the offences, whether he had the opportunity to commit the offences and whether the Crown’s case is sufficient to prove that the Accused was the perpetrator of one or more of the Events.

29. [72]

    It can be anticipated, not unreasonably, that the evidence of many of the listed witnesses will not be in dispute or in issue. To seek, as this paragraph of the Schedule to the subpoena does, all of the records relating to the investigations and statements of all of the witnesses is to over-reach.

30. [73]

    Further, in order to establish a legitimate forensic purpose, and that it is on the cards that a class of documents will be likely to meet the relevant tests, it is necessary for the Accused to establish that, in the circumstances of this subpoena, particular running sheets compiled by an identified Police officer, or else running sheets relating to a particular witness, are of such a kind as would demonstrate the need to examine any underlying documents.

31. [74]

    The Accused, except in respect of one specified individual, did not attempt to do so. I am satisfied that documents relating to Mr Owen Muhn are properly to be produced.

32. [75]

    The balance of paragraph 9 of the Schedule to the subpoena cannot be upheld, as the Accused has not established any legitimate forensic purpose for these documents, nor that it is on the cards that they would assist his case.

33. [76]

    This paragraph seeks documents relating to all of the searches carried out at the Accused’s home, his workplace and his father’s home.

34. [77]

    There will be evidence led by the Crown as to each of these searches and as to the lawful basis for each of the searches.

35. [78]

    Insofar as the lawful basis for the searches was a search warrant issued by a requisite authority, the Accused did not identify with respect to any one or more of those search warrants that the issuing of the warrant was to be challenged (assuming that to be possible in the course of the trial), nor that any of the warrants had been challenged by any form of judicial review or other like process.

36. [79]

    In those circumstances, to merely seek to identify the knowledge of those who were engaged in the searches and the purpose of the searches is to seek to conduct a fishing expedition of a kind which is simply not permitted.

37. [80]

    No legitimate forensic purpose for the documents sought by this paragraph has been established.

38. [81]

    It would be inappropriate to uphold this paragraph, and it will be set aside.

39. [82]

    These paragraphs relate to a recent exercise by officers of the NSW Police of locating and examining the contents of a large number of boxes of archived material, as well as and a large number of online records.

40. [83]

    The purpose of these paragraphs appears to me to be an attempt to examine the adequacy of disclosure by officers of NSW Police.

41. [84]

    The obligation of disclosure is a clear and well-defined one.

42. [85]

    If there is any failure of disclosure of a significant kind, or a kind which may impact on the occurrence of a fair trial, then that is a matter which goes to the administration of justice generally. It may or may not go to an individual issue in any particular trial.

43. [86]

    However, the use of a subpoena within the trial, involving the paragraphs here described, is not a legitimate means to identify whether disclosure has in fact been adequate, or else whether it has been engaged in in a manner which is appropriately resourced, or whether disclosure occurred within a reasonable time frame.

44. [87]

    These paragraphs relate to no issue in the proceedings and I am not satisfied that any legitimate forensic purpose has been shown with respect to them.

45. [88]

    These paragraphs relate to the individuals who owned the house at which the bomb described in Event 6 was discovered. The Crown’s case is that the bomb was planted in order to target Ms Blanchard’s solicitor who had previously lived at the property. The submissions of the Accused make it clear that there was sufficient concern about the safety of the owners of the property, although they were not living in the property at the time, to have caused Police to make investigations about a series of events which affected them.

46. [89]

    Because this is a circumstantial case which, in respect of the offences relating to this Event, requires the drawing of inferences, I am satisfied that there is a legitimate forensic purpose in the Accused having available to him the investigations with respect to the owners of this property.

47. [90]

    If, as appears from the submissions, Mr and Mrs Evans were subject to threats and mail-tampering, it is on the cards that those investigations may assist the Accused. They may not. But I am satisfied that the Accused has demonstrated that these paragraphs should be maintained and that the Commissioner’s Motion with respect to them should fail.

Conclusion

1. [91]

   In general terms, I have concluded that the challenged paragraphs, even where limited in description, have not been proved to be properly the subject of a subpoena because no legitimate forensic purpose has been demonstrated, or else it is not on the cards that the documents will materially assist the Accused.

2. [92]

   It is for those reasons that the specific orders which follow were made on 18 June 2018.

Orders

1. [93]

   I make the following orders:

   1. (1)

      Set aside paragraphs 1, 3, 4, 10, 15, 16, 17 and 18 of the Schedule to the Subpoena filed by the Accused on 1 June 2018 (being Exh TA);

   2. (2)

      Set aside paragraph 2 of the Schedule to Exh TA except (a) and (c), and then only so far as those notebooks refer to enquiries or investigations made with respect to:

   3. (3)

      Set aside paragraph 9 of the Schedule to Exh TA except as follows:

   4. (4)

      Otherwise dismiss the Notice of Motion filed by the Commissioner of the NSW Police on 12 June 2018, seeking orders with respect to Exh TA.