R v Warwick (No.81)

1. [1]

   On 4 November 2019, the solicitors for the Accused served a subpoena upon the Commissioner of Police, NSW Police (“the Commissioner”). This subpoena was identified as Exh TY. On 15 November 2019, the solicitors for the Accused caused another subpoena to be served on the Commissioner. This subpoena was identified as Exh TZ.

2. [2]

   On 7 November 2019 and 25 November 2019 respectively, the Commissioner filed two separate Notices of Motion seeking orders setting aside those two subpoenas.

3. [3]

   Both Notices of Motion were heard and dealt with together, with submissions first taking place on 26 November 2019. Further submissions were adjourned at the request of the Accused until 9 December 2019. At the conclusion of submissions, judgment was reserved until the morning of 10 December 2019. On 10 December 2019, formal orders were made, as set out in this judgment. It was indicated that reasons would be delivered in due course. These are those reasons.

The Challenged Subpoenas

1. [4]

   It is convenient to set out, in full, the Schedules of both subpoenas to which objection has been taken. The Schedule of the subpoena Exh TY, is as follows:

2. [5]

   The Schedule to the subpoena Exh TZ sought production of the following items:

Nature of Objection

1. [6]

   The Commissioner objected to the production of documents in both subpoenas and sought to have them set aside on the basis that there is no legitimate forensic purpose demonstrated with respect to the documents and items referred to in the Schedules to both subpoenas.

2. [7]

   The written submissions provided by the Commissioner refer to an earlier subpoena issued by the Accused on the Commissioner, which is dated 24 October 2019. Pursuant to that subpoena the Commissioner produced, in various tranches, many documents including the duty books of Detective Russell and other detectives spanning the period of their investigatory duties with the Unsolved Homicide Squad and Strike Force Reddan. Strike Force Reddan was comprised of those detectives who investigated the seven Events upon which the charges in the Indictment in these proceedings are based. In the course of describing the work of the Strike Force in evidence, the phrase “Operation Reddan” has been used. I do not think that anything of significance turns on which of these two different expressions is used.

3. [8]

   In the two subpoenas in question, the Accused has referred to parts of the wealth of documents which the Commissioner has produced over several weeks, being the duty books and note books of the detectives of Strike Force Reddan. It is the Commissioner’s submission that the solicitors acting for the Accused have read through those books and used the information in them to draft the two challenged subpoenas. The Commissioner submitted that the solicitor for the Accused drafted their further calls for production on the grounds that certain documents may exist, and that the Accused wished to read them to see what (if anything) might be contained in them. It was therefore submitted by the Commissioner that the two subpoenas were not issued for any identifiable legitimate forensic purpose. Put differently, the Commissioner submits that the subpoenas are nothing short of a “fishing expedition”.

4. [9]

   In her affidavit of 26 November 2019, Ms Ramsay confirmed that the documents sought in these two challenged subpoenas have been identified from reading the documents produced in answer to the 24 October 2019 subpoena.

Submissions by the Accused

1. [10]

   The Accused relied on several arguments to support the production of the wide range of documents identified in the Schedule to the challenged subpoenas, all of which, it was submitted, related to the work of detectives in the investigation of the seven Events. Put generally, those arguments centred around the inadequacy of the police investigation. The details of those arguments are to be largely found in the affidavits of Ms Ramsay.

2. [11]

   Ms Ramsay outlined several points which she submits are of “critical importance” to ensure a fair trial for the Accused. These points can be summarised as follows:

   1. (1)

      the witness statements tendered by the Crown in the trial usually contain reference to documents that the police showed a witness in the course of taking their statement. The Accused contends that for several witnesses, that list is incomplete. There is no record which has been served of the documents shown to each witness including those not referred to in statements, although such a record, it is said, must exist;

   2. (2)

      the evidence of Detective Russell, that he “rarely retained notes” during his interviewing of witnesses, is inconsistent with the evidence of some witnesses who described how police officers would write notes when they were being interviewed;

   3. (3)

      there are no records of interview with witnesses whose statements were taken after 2013. Post 2013, witness statements were produced in narrative form and do not include the questions asked by the police officers of the witnesses; and

   4. (4)

      the Crown tendered a number of running sheets during its case. In the 1980s, police would compile running sheets shortly after the investigation of a particular subject matter. Duty Books and notebooks maintained by detectives and other police, which would contain any notes that police officers may have relied upon in drafting those running sheets, ought to have been (but have not been) produced.

3. [12]

   According to Ms Ramsay:

4. [13]

   In oral submissions, Mr Connolly for the Accused drew attention to a number of issues relating to the inadequacy of disclosure, and the obligation of disclosure falling upon police officers pursuant to s 15A of the Director of Public Prosecutions Act 1986, and also that falling on the Crown pursuant to s 142 of the Criminal Procedure Act 1986. Often the clear distinction between these differing obligations was not maintained in Mr Conolly’s submissions.

5. [14]

   In order to justify the terms of each of the subpoenas, the Accused submitted that there had been a serious breach of the duty of disclosure by the Crown and police. It was submitted that this alleged failure to disclose justified the terms on which the subpoenas were issued and the production of the documents pursuant to those terms, so as to remedy the failure of the disclosure obligations.

6. [15]

   Specifically, it was submitted that there had been late disclosure of a box of records which had led to the issue of these two subpoenas. This submission was not elaborated further in any way, nor was any evidence provided about the actual contents of the box of records. The Accused merely submitted that, in light of that late disclosure, it was not now possible for the Accused to distinguish between documents that have been disclosed by the Crown in accordance with its obligation, and police documents of the kind called for in the two challenged subpoenas (at least some of which, the Accused contends, ought to have been disclosed by the Crown). Mr Connolly, in that context, said:

7. [16]

   Mr Connolly addressed Exh TY, and in respect of paragraph 1 (which called for a copy of memos concerning Strike Force Reddan read by Detective Russell), he submitted:

8. [17]

   A similar style of submission was followed with respect to the paragraphs calling for all emails between Detective Russell and identified individuals. Of those emails, Mr Connolly submitted:

9. [18]

   In the course of his submissions, Mr Connolly said that with respect to the paragraphs in the challenged subpoenas touching upon the work of Detective Russell, the mere fact that documents related to Detective Russell and his work led inexorably to the conclusion that, within the relevant legal test, it was “… on the cards” that the documents would assist the Accused. Mr Connolly extended that submission to the documents relating to the work of Detective Heffernan (who was the officer Second In Charge of the investigation). This submission encompassed all of the paragraphs of the challenged subpoenas, except paragraph 8, 10-12 and 24 of Exh TY, and paragraphs 1-2, 13 and 26‑33 of Exh TZ.

10. [19]

    A specific submission was made with respect to paragraph 14 of Exhibit TY relating to the subject matter of interaction between officers of Strike Force Reddan and one or more officers of the FBI in 2016. With respect to that paragraph, the following was submitted:

11. [20]

    Mr Connolly queried the submission by counsel for the Commissioner that no legitimate forensic purpose was disclosed in the subpoenas saying this:

12. [21]

    It is unnecessary to continue setting out the submissions. It can be fairly said that the oral submissions for the Accused were commenced from, and based upon, the notion that there had been inadequate disclosure by police and the Crown in accordance with their statutory obligations. Consequently, it was said that such lack of disclosure could properly be remedied only by the Accused issuing subpoenas.

13. [22]

    The submissions then proceeded to the proposition that the Accused had an entitlement to be given copies of, or else to inspect copies of, all documents in the possession of investigating police. This is because, it was said, such documents necessarily were relevant by virtue of the fact they had been either created by police or having come into the possession of the police in connection with the investigation. It was submitted that the Accused had a legitimate forensic purpose to see all relevant documents. The submission proceeded to include the proposition that if a document was relevant and was in police possession, it must be “… on the cards” that would assist the case for the Accused.

14. [23]

    In support of the issue of relevance in the course of submissions, Mr Connolly submitted that it was the case for the Accused that police had closed their minds to the proper investigation of all seven Events when they came to reinvestigate them commencing in 2013. He submitted that it followed that all conduct of the police in the course the reinvestigation was relevant and that the Accused had a legitimate forensic purpose in examining all documents.

15. [24]

    By reference to individual paragraphs, Mr Conolly submitted that each was relevant to the failure of police to disclose records of investigations; that they were relevant to what was said to be slow and limited disclosure by police and the Crown; and that paragraph 24 of Exh TY and other similar paragraphs were made relevant by the failure of police to produce documents which had been shown to, or provided by, witnesses from whom statements been obtained.

Submissions for the Commissioner

1. [25]

   Putting it in summary form, the Commissioner drew attention to the principles of law relevant to subpoenas and submitted, that the Accused had not shown anything more than that the challenged subpoenas were fishing expeditions. It was submitted that the subpoenas were merely seeking to identify whether documents existed and, if so, to read them. It was consequently submitted that the Accused was unable to show any legitimate forensic purpose with respect to any of the documents covered by the challenged subpoenas. The Commissioner also argued that the submissions for the Accused did not identify or demonstrate that it was “…on the cards” that of any of the documents sought would be likely to assist.

Relevant Legal Principles

1. [26]

   The legal principles with respect to the setting aside of a subpoena (or part thereof) are well established. I have dealt with those principles in a number of previous judgments in this case, including: R v Warwick (No.12) [2018] NSWSC 522 at [28]-[35]; R v Warwick (No.15) [2018] NSWSC 652 at [6]-[8]; R v Warwick (No.16) [2018] NSWSC 733 at [10]-[11].

2. [27]

   In R v Warwick (No.12) I set out the relevant legal principles. It is convenient to repeat what I there wrote:

Discernment

1. [28]

   The Accused submitted that the subpoena was valid due to a failure by the Crown comply with the duty of disclosure. Therefore, any analysis usefully commences with a consideration of that duty. It was recently the subject of consideration in Marwan v Director of Public Prosecutions [2019] NSWCCA 161. In that decision, at [29], Leeming JA (with whom RA Hulme J agreed) said:

2. [29]

   It seems to me that, if the Accused has no right based upon the duty of disclosure to enforce the production of documents (save by reference to a fair trial), then it is certainly not open to the Accused to issue a subpoena for the purpose of obtaining what the Accused regards as adequate disclosure.

3. [30]

   It seems clear to me from a careful reading of the paragraphs of the schedules of Exhibits TY and TZ, that the Accused has identified, through the consideration of previous documents obtained through subpoena, particular events and meetings that have taken place, details of duties and police procedure undertaken, and the existence of particular documents associated with the investigation. Consequently, the Accused has now made various demands for any and all of the documents which may relate to those matters.

4. [31]

   Paragraph 1 of the first subpoena, Exhibit TY, calls for copies of memos read by Detective Russell “… and referred to in most days of his notebooks”. Paragraph 5 calls for records of a meeting held between three detectives, including Detective Russell, over a period of 1½ hours on an identified day. Paragraph 10 calls for disclosure through documents of all facts matters and circumstances surrounding the location of a running sheet and the circumstances leading to its disclosure. The following paragraph, seeks records of all investigations made by police since 1990 (a period of 29 years) in relation to “the matters raised in running sheet 2”. Running sheet 2, the document the subject of these paragraphs, has been tendered in the proceedings and is a record in chronological form of the time and date when particular events occurred and information was received at the police command post situated at, or in the vicinity of, the Kingdom Hall immediately after the explosion that took place. Paragraph 24 of Exh TY calls for records of all documents shown to each witness called in the Crown case, prior to or at the time of preparation of the statement of the witness, where those documents are not commented upon in the statement of the witness.

5. [32]

   Paragraph 7 of the second subpoena, Exhibit TZ, calls for records, including all file notes and records of entries, made by Detective Russell on a daily basis as referred to in his duty book. Paragraph 9 calls for records of team meetings of Strike Force Reddan including all agendas, file notes, meeting notes and summaries of the meetings held on specific identified dates. Paragraph 13 calls for a copy of all documents, photographs, emails and other records provided by Ms Andrea Blanchard and Ms Trudi Kennedy to police from 2013 to date. Paragraph 24 of Exhibit TZ calls for records of a meeting which is recorded as having occurred on an identified date between the Commissioner for Police and the Deputy Commissioner of Police. Paragraph 33 seeks the records of the taking of statements from members of an identified family by a named detective which records are said to “… include a copy of the requisitions or questions from which the detective was working … when taking the statements…”.

6. [33]

   These examples demonstrate that on their face, and without anything further, the challenged subpoenas were issued for the purpose of ascertaining whether documents existed, in circumstances where the description of the documents and categories do not carry any relationship to any issue of relevance. Rather it is clear from the terms of the subpoenas that what is being sought is an exercise akin to civil discovery.

7. [34]

   Further, none of the submissions by the solicitor for the Accused identified any legitimate forensic purpose driven by reference to any specific paragraph. The submissions to which I have earlier referred proceeded not on the basis of some clear relationship between a paragraph in the subpoena and a specific issue in the proceedings (thereby demonstrating a clear legitimate forensic purpose), but rather from the basis that the solicitors for the Accused wished to see all documents that have been referred to, seen by, or prepared by police in the course of their investigation.

8. [35]

   These conclusions mean that it necessarily follows that the Accused has not demonstrated, with respect to any of the categories of documents sought or any particular document, that it is on the cards the contents of that document would help the Accused or provide any assistance to him.

9. [36]

   For these reasons I upheld the Notices of Motion and ordered that the subpoenas should be set aside.

Orders

1. [37]

   I make the following orders:

   1. (1)

      Set aside the subpoena issued at the request of the Accused to the Commissioner of Police NSW on 4 November 2019 which is marked Exh TY.

   2. (2)

      Set aside the subpoena issued at request of Accused to the Commissioner of Police NSW on 15 November 2019 which is marked MFI TZ.

   3. (3)

      Otherwise dismiss the Notices of Motion filed by Commissioner of Police on 7 November 2019 and 25 November 2019.