Citation: R v Warwick (No.84) [2019] NSWSC 1908
Court: Supreme Court of New South Wales
Date: 9 December 2019
Judge(s): Garling J
Background
This decision arose during an ongoing criminal trial in which the accused had issued a series of subpoenas to the NSW Commissioner of Police seeking production of various documents. The Commissioner filed two Notices of Motion, dated 7 November 2019 and 25 November 2019, seeking to have two of those subpoenas set aside on the basis that they lacked a legitimate forensic purpose and amounted to impermissible fishing expeditions or attempts to obtain discovery.
Argument on the Motions had begun on 26 November 2019 but was adjourned partway through to accommodate the accused's expert witnesses. By the time the hearing was due to resume on 9 December 2019, the accused's lawyers had begun reviewing duty books produced in response to an earlier subpoena. The accused sought a further week's adjournment, contending that information emerging from those duty books would better inform the arguments about the forensic purpose underlying the challenged subpoenas.
The trial had reached an advanced stage. The Crown had closed its case on 31 October 2019, a no-case-to-answer application had been dismissed, a Prasad direction had been refused, and the accused had indicated he would not give evidence. Expert witnesses were being called.
Legal Issues
- Whether the accused had demonstrated sufficient grounds to justify a further adjournment of the hearing of the Commissioner's two Notices of Motion.
- Whether the legitimacy of a subpoena can be defended by reference to documents that the issuing party has not yet fully read.
- What onus rests on the party who issued a subpoena when that subpoena is challenged by its recipient.
Decision
Garling J refused the adjournment application. His Honour noted that when a subpoena is challenged, the party who issued it bears the onus of demonstrating that it was a proper subpoena, supported by a legitimate forensic purpose, at the time it was issued. The relevant legal principles require that the documents sought relate to matters in issue in the proceedings and that it be "on the cards" that production would materially assist the issuing party's case.
His Honour observed that nothing in the oral submissions or in the further affidavit filed that morning suggested the accused was unable to defend the subpoenas from the material already before the court. The latest affidavit appeared, over many paragraphs, to contain arguments addressing specific paragraphs of the subpoenas, indicating the accused's representatives were already in a position to put those arguments.
Garling J held that it is not generally open to a party who issued a subpoena to defend its legitimacy by reference to information contained in documents that have not yet been read. The assessment of validity applies at the time of issue and again when challenged, not prospectively once further material is reviewed.
Given the advanced stage of the trial, his Honour concluded that there was an obvious importance in resolving the Motions at the earliest reasonable opportunity, and that opportunity had arrived. The adjournment application was dismissed.
Orders Made
- The accused's application for adjournment of the Notices of Motion dated 7 November 2019 and 25 November 2019 was refused.
Key Takeaways
- The party who issues a subpoena bears the onus, when that subpoena is challenged, of demonstrating a legitimate forensic purpose that existed at the time of issue.
- A subpoena's legitimacy is assessed by reference to the position as it stood when the subpoena was issued and as it stands when the challenge is heard, not by reference to material the issuing party has not yet reviewed.
- Refusing the adjournment, Garling J emphasised that an accused cannot prop up a challenged subpoena by relying on documents produced under a separate, earlier subpoena that counsel has not yet finished reading.
- The Commissioner's grounds for seeking to set aside the subpoenas included that the documents sought may not exist, that no legitimate forensic purpose was apparent on the face of the subpoenas, and that the subpoenas were so broad as to constitute fishing expeditions or improper attempts to obtain discovery.
- At an advanced stage of a criminal trial, the court identified a clear public interest in resolving outstanding procedural disputes promptly rather than permitting further delay.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Warwick (No.12) [2018] NSWSC 522
- The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Waind v Hill [1978] 1 NSWLR 372
- Prasad v R [1994] HCA 2; (1994) 68 ALJR 194
- Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9