Citation: R v Darcy (No 2) [2021] NSWSC 593
Court: Supreme Court of New South Wales
Date: 13 April 2021
Judge(s): Lonergan J
Background
The accused stood trial for the murder of her domestic partner at Walcha in August 2017. The Crown alleged she sedated him with a combination of drugs, including an animal sedative obtained from a veterinary clinic, and asphyxiated him using a plastic bag and helium, staging the death to appear as a suicide.
The accused had a prior history known to local police, including a 2009 incident involving an assault on a former husband and arson. That history formed part of the basis for tendency evidence admitted at the murder trial in earlier proceedings.
On 11 March 2021, the accused's solicitor issued a subpoena to the NSW Police Force seeking various documents. The Commissioner of Police moved to set aside one subparagraph of the subpoena, paragraph 3(iv), on the ground that it lacked a legitimate forensic purpose. After narrowing of the disputed scope by counsel for the accused, Lonergan J ruled on 13 April 2021 that the contested subparagraph should be set aside.
Legal Issues
- Whether paragraph 3(iv) of the subpoena, seeking records of police database searches conducted on the accused during a defined period, was supported by a legitimate forensic purpose
- Whether the material sought was relevant to any issue actually in dispute at the murder trial
- Whether the subpoena amounted to a prohibited fishing expedition
Decision
Issue 1: Legitimate forensic purpose
Lonergan J reviewed the applicable principles, drawing on Carroll v Attorney General (NSW), Attorney-General (NSW) v Chidgey, Fantakis v Local Court of New South Wales, and Mann v Commissioner of Police. The court noted that those authorities make clear that a subpoena must be directed at material with genuine evidentiary relevance to an issue in the trial, and that fishing expeditions are not permitted (at [14]-[17]).
The accused's counsel argued that police attitudes toward the accused and the frequency of pre-death investigations were a key plank of the prosecution case, making a catalogue of police searches potentially relevant. The court was not persuaded. It found that no evidentiary value or relevance had been identified for the catalogue of searches sought under paragraph 3(iv), either in evidence or in argument (at [21]).
Issue 2: Relevance to the trial issues
The court identified the central issue at trial as whether the Crown could prove beyond reasonable doubt that the accused intended to kill and did kill the deceased (at [24]). Against that issue, the court found that the manner, timing, and reasons for police investigation of the accused were not matters in dispute, and that the investigative log of the relevant police officer was not germane to those issues (at [22]-[23]).
Issue 3: Fishing expedition
Lonergan J characterised paragraph 3(iv) as a classic fishing expedition, seeking documents on the chance that something might assist the accused in attacking the police investigation at some level. The court held that no basis had been shown for a belief that the material would assist the accused in any respect, and that the subpoena in that part therefore lacked legitimate forensic purpose and should be set aside (at [25]-[26]).
Orders Made
- Paragraph 3(iv) of the Subpoena for Production issued to the Commissioner of Police filed 11 March 2021 is set aside.
Key Takeaways
- A subpoena directed to police for records of database searches about an accused will be set aside where the accused cannot demonstrate a legitimate forensic purpose connecting that material to an issue actually in dispute at trial (at [21], [25]-[26]).
- The central issue in a murder trial is whether the accused intended to and did kill the deceased; peripheral questions about how, when, or why police began investigating the accused do not ordinarily constitute issues in the trial capable of grounding a subpoena (at [22]-[24]).
- Fishing expeditions through subpoenas remain impermissible: no basis for a reasonable belief that the documents would assist the accused is insufficient to establish legitimate forensic purpose (at [25]-[26]).
- Where the prosecution brief already discloses the relevant police statements and investigative material, a further subpoena seeking an exhaustive catalogue of ancillary records faces a high bar to demonstrate that additional production serves any evidentiary purpose (at [21]).
- Narrowing the temporal scope of a contested subpoena during argument does not, of itself, cure a deficiency in legitimate forensic purpose if the relevance of the reduced category of documents remains unestablished (at [13], [21]).
Legislation and Cases Referenced
Legislation
- Uniform Civil Procedure Rules 2005
Cases
- Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
- Carroll v Attorney General (NSW) (1993) 70 A Crim R 162
- Fantakis v Local Court of New South Wales [2020] NSWSC 931
- Mann v Commissioner of Police [2020] NSWSC 369
- R v Darcy [2021] NSWSC 12