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Supreme Court 23 January 2020

R v Warwick (No.86)

[2020] NSWSC 31

Other
CRIMINAL PROCEDURE SUBPOENAS APPLICATION TO CROSS APPLICATION REFUSED

Citation: R v Warwick (No.86) [2020] NSWSC 31
Court: Supreme Court of New South Wales
Date: 23 January 2020
Judge: Garling J

Background

This decision arises from an ongoing criminal trial in the Supreme Court. The accused, through his solicitor, had caused two subpoenas to be issued in December 2019, addressed to the Chief Justice of the Family Court of Australia and the Principal Registrar of the Family Court of Australia. The subpoenas sought production of a report said to have been prepared by a retired Family Court judge, Justice Marshall, following his review of Family Court files in 1984, as well as any related letter of retainer.

When the recipients, represented by the Australian Government Solicitor, appeared on 20 January 2020, they informed the Court that no documents answering the description in the subpoenas could be located. The accused's solicitor challenged the adequacy of that response and sought an opportunity to test it.

At the Court's direction, the Acting Chief Executive Officer and Principal Registrar of both the Family Court of Australia and the Federal Circuit Court of Australia affirmed an affidavit on 22 January 2020 describing in detail the searches that had been undertaken. The accused then applied for an order requiring the Principal Registrar to attend for cross-examination on the adequacy of those searches.

  • Whether the recipients of the subpoenas had conducted reasonable searches before answering that no documents could be produced.
  • Whether the affidavit evidence provided by the Principal Registrar adequately described the nature and extent of those searches.
  • Whether the accused was entitled to cross-examine the Principal Registrar on the reasonableness and adequacy of the searches described in his affidavit.

Decision

Garling J noted the factual backdrop against which the subpoenas were issued. Trial evidence established that Justice Marshall had conducted some form of review of Family Court files in 1984 and had provided names of suspects in the "Family Court bombings" to police. However, witnesses with direct knowledge, including the Principal Registrar at the time, could not confirm that a formal written report had ever been prepared or identify where such a document would have been filed. The evidence did not permit any firm conclusion that a specific document existed or where it might now be found.

Against that context, Garling J accepted that the searches described in Mr Pringle's affidavit had been conducted as stated. The affidavit covered extensive searches by a wide variety of people across different roles within the institution, including former staff. His Honour rejected the submission that the absence of written records evidencing how the search was conducted demonstrated inadequacy, observing that such a requirement would more appropriately arise in the context of discovery in civil litigation rather than a subpoena directed to a stranger in a criminal trial.

Garling J also rejected the argument that Mr Pringle was required to obtain direct affidavit evidence from each individual who participated in any part of the search. The obligation on recipients of such subpoenas is to conduct reasonable searches, not to produce granular individual evidence from every searcher, particularly where the documents sought belong to an institution rather than an individual.

The Court was abundantly satisfied that the answer given in response to the subpoenas, namely that no documents could be found, was reasonable and properly based on extensive searches conducted before and after the subpoenas were received. The application for cross-examination was refused.

Orders Made

  • The application for orders requiring the attendance of the Principal Registrar of the Family Court of Australia for cross-examination upon his affidavit affirmed 22 January 2020 is refused.

Key Takeaways

  • The obligation on a third-party recipient of a subpoena in a criminal trial is to conduct reasonable searches for responsive documents, not to produce an exhaustive audit trail of the search process itself.
  • Garling J distinguished the standards applicable to discovery in civil litigation from those applicable to subpoenas issued to strangers in criminal proceedings, treating the former as an inappropriate benchmark for the latter.
  • Where searches are conducted by multiple people across an institution, it is not necessary for the responding party to file individual affidavits from each person involved in the search in order to satisfy the court that the obligation has been met.
  • A hearsay-based affidavit from a senior officer describing institutional searches can constitute adequate evidence of compliance with a subpoena, provided the court is satisfied the searches described were actually undertaken.
  • The absence of evidence confirming that a document was ever created, combined with extensive unsuccessful searches, supported the court's conclusion that the response to the subpoenas was reasonable.

Legislation and Cases Referenced

The judgment did not cite any specific legislation or cases. Garling J resolved the application on general principles applicable to subpoena compliance in criminal proceedings.