R v Warwick (No.79)

[2019] NSWSC 1565

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.79) [2019] NSWSC 1565
Hearing dates:	07 November 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Dismiss the application for an order that the subpoena handed up today, 7 November 2011, be served on short notice.
Catchwords:	CRIMINAL PROCEDURE – Subpoena – Application for short service -
Legislation Cited:	Not Applicable
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly / I Benson (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co
File Number(s):	2015/222068
Publication restriction:	Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236.

EX TEMPORE Judgment (T.7803)

1. An application has been made this morning by the lawyers for the Accused for an order that a subpoena to produce documents addressed to the NSW Commissioner of Police be served on short notice and made returnable in a truncated period of time.

2. The proposed subpoena contains a Schedule with 33 separate paragraphs describing the documents sought. It is obvious, on the face of the Schedule, and from the terms of the various paragraphs, that the documents sought to be produced go back to the early part of 2015. As well, the paragraphs often contain descriptions of the documents which are broad and generalised. These features suggest to me that the searches required to be made by the Commissioner, to satisfy the subpoena, will take a not insignificant period of time.

3. The effect of the grant of an order for short service is to truncate the time for production of documents to the Court from the usual period which the Court ordinarily determines as a reasonable one. There is little purpose to be served in truncating the time for production of documents to the Court if the burden cast upon the recipient of the subpoena is such that it is unlikely to be able to achieve production in that shortened time.

4. Ordinarily, short service of a subpoena is granted by reason of one or more particular events occurring during the conduct of a trial. For example when there is a witness who is in the process of giving evidence or who is shortly to give evidence and it is discovered that there are documents which are necessary and ought to be produced to enable the conduct of the examination of that witness in an appropriate way and without disruption to the trial.

5. As well, ordinarily, the Court would expect that where a subpoena is to be served on short notice, some contact is made with the intended recipient to see if they are likely to be in a position to be able to produce the documents within the shortened time. None of those features are present here.

6. Indeed, to the contrary, the Crown case is closed. The Crown does not propose to call any further witnesses as part of its case nor does the Crown seek leave to re-open its case to adduce any further evidence, including documentary evidence. The next step in the trial is for the Court to hear and consider an application by the Accused that he has no case to answer. That application is to be heard on Monday 11 November 2019, and will continue to its conclusion. It would only be if that application was wholly unsuccessful, that any issue about further evidence, and therefore documents obtained on subpoena, would arise.

7. The burden of searching for and producing the documents the subject of this subpoena is significant and, in my view, is unlikely to be able to be achieved in any shortened time.

8. Having regard to the stage of this trial, I see no prejudice to the Accused if he is required to issue this subpoena and have it made returnable in the ordinary course.

9. I dismiss the application for an order that this subpoena, handed up today, be served on short notice.

Orders

10. I make the following order:

1. Dismiss the application for an order that the subpoena handed up today, 7 November 2019, be served on short notice.

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