Citation: R v Warwick (No.89) [2020] NSWSC 43
Court: Supreme Court of New South Wales
Date: 4 February 2020
Judge(s): Garling J
Background
The accused was standing trial on serious criminal charges arising from events in the 1980s. The proceedings involved a large and complex investigation conducted by Strike Force Reddan, which used an electronic database called e@gle.i to store both historic documents and newly created investigation records.
During the trial, evidence emerged that an electronic database used by police during the original 1980s investigation no longer existed and had never been available to Strike Force Reddan. The accused sought to explore the implications of that absence for the prosecution case, including by supporting a proposed direction to the jury about the adequacy of the police investigation.
On 31 January 2020, the accused applied for leave to issue a subpoena addressed to the Commissioner of Police. The subpoena sought access to a detective's duty books and notebooks, all data stored on the e@gle.i database associated with Strike Force Reddan (including metadata), and any user manual for e@gle.i. The Commissioner moved to have the subpoena set aside.
Legal Issues
- Whether the subpoena specified documents with reasonable particularity, as required for a subpoena addressed to a third party
- Whether the subpoena had a legitimate forensic purpose or amounted to an impermissible "fishing expedition"
- Whether the accused had demonstrated that the documents sought would, or that it was "on the cards" they would, materially assist his case
- Whether compliance with the subpoena's demand for all e@gle.i data would be oppressive (this issue was ultimately not reached)
Decision
Garling J set aside the subpoena in its entirety. His Honour applied the long-established principles summarised in the earlier ruling in this same proceeding (R v Warwick (No 12) [2018] NSWSC 522) and rooted in Sir Frederick Jordan CJ's statement in Commissioner for Railways v Small (1938): a subpoena addressed to a stranger to litigation must identify the documents sought with reasonable particularity and cannot be used as a mechanism to compel broad discovery.
In relation to the e@gle.i database (paragraph 2 of the schedule), counsel for the accused conceded during argument that an inspection might lead "somewhere" in terms of evidence but might not. He ultimately acknowledged it might only lead to a better understanding of the police investigation. Garling J found this to be the paradigm of a fishing expedition: the accused sought access to a large body of documents to see whether anything relevant might be found, without being able to identify what those documents would contain or how they would assist the defence case.
Regarding Detective Staples' duty books and notebooks (paragraph 1 of the schedule), Garling J noted that Detective Staples had already completed her evidence and had been extensively cross-examined, including on recall. Despite that extensive opportunity, the accused had not identified any specific forensic purpose served by the production of her notebooks, nor articulated how they would materially assist the defence. The same lack of legitimate purpose that infected the e@gle.i request applied equally here.
Because the subpoena failed for want of legitimate forensic purpose, Garling J did not need to consider the separate ground of oppressiveness.
Orders Made
- The subpoena issued by the accused to the Commissioner of Police, NSW Police on 31 January 2020 was set aside in whole.
- The Notice of Motion filed on 3 February 2020 was otherwise dismissed.
Key Takeaways
- A subpoena addressed to a third party must identify the documents sought with reasonable particularity; it cannot be used as a substitute for discovery against someone who is not a party to the litigation.
- The "fishing expedition" principle, confirmed by the High Court in Alister v R (1984) 154 CLR 404, prohibits a party from using a subpoena to trawl through a large body of documents in the hope that something relevant might emerge.
- Where counsel concedes that inspection of documents might or might not lead anywhere, that concession is likely to be fatal to the legitimate forensic purpose test.
- The fact that a police investigation may have been incomplete or inadequate does not, of itself, give rise to an entitlement to inspect the entirety of a police investigation database by subpoena.
- Extensive prior cross-examination of a witness, without any identified gap or specific document the defence sought to explore, will ordinarily defeat a subsequent attempt to obtain that witness's notebooks and records by subpoena.
Legislation and Cases Referenced
Cases:
- Alister v R [1983] HCA 45; (1984) 154 CLR 404
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- R v Warwick (No 12) [2018] NSWSC 522
Legislation:
- No specific legislation was cited in this decision.