AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 24 February 2020

R v Warwick (No.81)

[2020] NSWSC 76

Public order & justice offences
CRIMINAL PROCEDURE APPLICATION TO SET ASIDE TWO SUBPOENAS SUBPOENAS SET ASIDE

Citation: [2020] NSWSC 76
Court: Supreme Court of New South Wales
Date: 24 February 2020
Judge(s): Garling J

Background

This decision arises from a lengthy criminal proceeding in which the accused faced serious charges. The case involves what appears to be a complex investigation known as Operation Reddan, and by late 2019 the matter had already generated numerous interlocutory rulings.

In November 2019, the accused's solicitors served two subpoenas on the Commissioner of Police, NSW Police. The subpoenas called for an extensive range of documents, including internal police memos, emails, conference notes, running sheets, statements, and investigative records spanning several years of police activity.

The Commissioner filed two separate Notices of Motion seeking to have both subpoenas set aside. Those motions were heard together, with submissions in late November and early December 2019. Garling J made the formal orders on 10 December 2019 and delivered written reasons on 24 February 2020.

  • Whether each of the two subpoenas had a legitimate forensic purpose that justified their production requirements.
  • Whether the documents and categories described in the subpoenas bore a sufficient relationship to any relevant issue in the proceedings.
  • Whether the subpoenas amounted, in effect, to an impermissible exercise in civil-style discovery.

Decision

Garling J set aside both subpoenas in their entirety. The court found that, on their face, the challenged subpoenas did not demonstrate any legitimate forensic purpose. The categories sought showed no clear relationship to any specific issue of relevance in the proceedings.

The court observed that the submissions advanced on behalf of the accused did not attempt to link individual paragraphs of the subpoenas to particular issues in the case. Instead, the defence's position appeared to be that it wished to see all documents that had been referred to, seen by, or prepared by police during their investigation. Garling J characterised this as an exercise akin to civil discovery, which is not a proper use of the subpoena process in criminal proceedings.

Applying the relevant test, the court found that the accused had not demonstrated, with respect to any category or any particular document sought, that it was "on the cards" that the contents of the documents would assist the accused. That failure was fatal to both subpoenas. Each subpoena appeared directed at ascertaining whether documents existed, rather than producing documents known or reasonably believed to be relevant to a live issue.

Orders Made

  • The subpoena issued to the Commissioner of Police on 4 November 2019 (Exh TY) was set aside.
  • The subpoena issued to the Commissioner of Police on 15 November 2019 (MFI TZ) was set aside.
  • The Notices of Motion filed by the Commissioner on 7 November 2019 and 25 November 2019 were otherwise dismissed.

Key Takeaways

  • A subpoena in criminal proceedings must have a legitimate forensic purpose, demonstrated by a clear relationship between the documents sought and a specific issue of relevance in the case.
  • Where submissions in support of a subpoena do not link individual categories to specific issues, but instead seek broad access to investigative material, a court is likely to find that no legitimate forensic purpose has been established.
  • The "on the cards" test requires that the accused show it is reasonably possible that the documents sought would assist the defence; a generalised desire to inspect police investigation records will not satisfy this threshold.
  • Subpoenas issued in a manner that effectively replicates civil discovery are liable to be set aside, as that process is not a permissible function of the criminal subpoena regime.
  • In dismissing the subpoenas, the Supreme Court reinforced that breadth and volume of documents sought does not substitute for a targeted, issue-specific forensic rationale.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)

Cases:
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- R v Warwick (No.12) [2018] NSWSC 522
- R v Warwick (No.15) [2018] NSWSC 652
- R v Warwick (No.16) [2018] NSWSC 733