Borody v Smith & Ors [2002] NSWSC 1242 | Case summary

JUDGMENT 1 MASTER: The plaintiff is a defendant in proceedings in the Local Court. It is alleged that he committed two speeding offences in the same location. It is alleged that such offences were detected by a fixed speed camera. 2 The defendant issued four subpoenas in the Local Court proceedings. Two were issued to The Roads and Traffic Authority (RTA). Two were issued to Poltech International Limited (Poltech). 3 On 25 June 2002, both the RTA and Poltech moved to have the subpoenas set aside. The application was heard by Mr Still (LCM). The transcript of the hearing before the learned Magistrate is in evidence. In addition, there is the other documentation relevant to the application (including a copy of each subpoena). 4 It was intended to mount a defence to the allegations of speeding founded on inter alia the provisions of s10 of the National Measurement Act 1960 (the Act). One matter was clearly ventilated in argument before the learned Magistrate. It involved a question of conflict between state and federal legislation. There is some dispute as to whether or not there was additional ventilation of a matter as to the proper calibration or proper function of the approved speed-measuring device. 5 The learned Magistrate set aside each of the subpoenas. His reasons were expressed as follows;- "BENCH: In respect of the two subpoenas addressed to the RTA and to Poltech, both of those organisations have lodged applications with the Court for those subpoenas to be set aside reciting a number of grounds. In my view the subpoenas issued to both are too broad and seeks in aid the production of material relevant only to the defendant's own construction of the applicability or otherwise of the National Measurements Act 1960. If the defendant be right concerning that construction the onus in my view falls to the prosecution to establish the elements of the offence, not the defendant to rebut. I cannot see any evidential value to the defendant in the materials sought. Specifically I fail to see in the subpoena a genuine legitimate forensic purpose. I am happy to adopt the test by Simpson J in Saleem (sic). While that may of itself dispose of the matter I should also record my view, on the material placed before me, that the secondary test of on the cards is also not met and the documents sought would not, in my view, materially assist the defendant's case. I would have thought also that in line with what I have already said, that both subpoena are fishing expeditions and in circumstances where I would paraphrase Hunt J to put the defendant in possession of the fishing rod but with no need to cast it into the water. I grant both applications to be set aside." 6 It appears from this material that he relied on a number of grounds in reaching that result. Firstly, there was a question of width. Secondly, there was a question of relevance. This concerned a question of onus and lack of evidentiary value. Thirdly, there was a lack of genuine legitimate forensic purpose. Finally, he took the view that the subpoenas involved a fishing expedition. 7 The present proceedings were brought by Summons filed in this Court on 23 July 2002. The proceedings purport to bring an appeal against the setting aside of the subpoenas. 8 As the plaintiff is bringing this appeal against an interlocutory decision, the only avenue appeal is pursuant to s 104 (4) of the Justices Act 1902. Under this provision, any such appeal is restricted to one that involves a question of law alone and can only be brought with leave of this Court. 9 With the consent of the parties, the course was taken of hearing together both the application for leave and the appeal itself. 10 For the purposes of dealing with these matters, I shall first turn to the question of the merits of the proposed appeal. 11 At the outset I should refer to the matter of a preliminary decision made in the lower court proceedings by another Magistrate. Unfortunately, there is no written material before the court concerning this decision. Some information concerning it has been given from the Bar Table by counsel for the RTA. The effect of what has been decided seems to be that at present there is no necessity for the requirements of s 10 to be satisfied. 12 The court has been referred to provisions contained in ss 44 - 47 of the Road Transport (Safety and Traffic Management) Act 1999. These provisions concern speed measurement and approved speed-measuring devices. Section 45 provides a definition of approved camera recording device. Section 46 enables the use of a certificate as admissible evidence in proceedings. The certificate concerns matters of accuracy and proper operation. Section 47 enables similar use of photographic evidence of a speeding offence. 13 In relation to each of the certificate and the photographic evidence, the Act provides that each of them will provide specified evidence unless contrary evidence has been adduced. As I understand what has been put, the s 10 argument was intended to meet the operation of these provisions. 14 Submissions have been made on questions of onus. Counsel have not referred me to any authority concerning the proper construction of the statutory provisions. However, it would appear that the provisions were intended to facilitate proof of speeding offences, whilst the onus for the proving of any offence remained with the prosecution. 15 Other questions of onus were ventilated during submissions. Largely, these concerned the application of s 10. For present purposes, it is unnecessary to pursue them. 16 A copy of each subpoena is an annexure to an affidavit sworn by Mr D'Angelo on 19 December 2002. 17 I shall first turn to the subpoenas issued to the RTA. One of the subpoenas contains seven paragraphs. The other contains two paragraphs. The first of those two paragraphs relate to inter alia meetings. 18 The subpoenas issued to Poltech are in similar form. They were not separately addressed during argument. 19 Although the appeal has been brought in respect of each of the four subpoenas, in the course of argument counsel for the plaintiff conceded that nothing could be said in respect of the orders made to set aside the two paragraph subpoenas. Ultimately, the appeal was not pressed in relation to the decision to set the two of them aside. 20 The subpoena which comprises seven paragraphs can be said to be a poorly drafted document. Much criticism can be directed as to form. In many respects, it does not identify the documentation that is sought to be produced (rather, it refers to matters such as technical specifications, performance criteria, instructions, quality control and calibration procedures). Leaving these matters aside, the subpoenas are clearly expressed in terms that are too wide. The court has been informed that during the hearing before the learned Magistrate no attempt was made to narrow the content. In my view, the learned Magistrate was correct in setting aside the subpoenas on this ground alone. The forming of that view suffices to dispose of this appeal. 21 In addition, the learned Magistrate was entitled to treat the subpoenas as involving a fishing expedition. Much of what was required to be produced could be seen in a context of a trolling for a defence to the prosecutions. 22 There has been argument on the question of legitimate forensic purpose. The court has been referred to a number of decided cases (R v Saleam (1989) 16 NSWLR 14; Regina v James Saleam [1999] NSWCCA 86 and NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139). 23 If the plaintiff is merely looking to the Act as a statute which overrides the operation of state legislation then it is difficult to see that there would be any legitimate forensic purpose in giving access to the subpoenaed material. If there is to be a challenge to the accuracy and reliability of the particular fixed camera, then it may be that the issue of a limited subpoena or an inspection of the fixed camera is appropriate. 24 The authorities make it clear that the party issuing the subpoena should be able to identify expressly and with precision the purpose for which access is sought to subpoenaed documents. It needs to be stressed that this is a question which concerns access to or inspection of subpoenaed material (as opposed to the earlier step in the production process which is the matter of whether or not the documents should be produced to the court in answer to the subpoena). 25 In my view, the plaintiff has failed to demonstrate an error of law justifying the disturbing of the decisions. For this reason alone, the proceedings are doomed to failure. However, I should mention one further matter. 26 The proceedings arise out of an interlocutory decision. The Local Court was dealing with a question of practice or procedure that arose prior to the determination of the proceedings in that court. Appellate Courts have expressed reluctance to intervene on appeal in respect of such matters. In my view, this is an approach which should be entertained in the case of these misconceived proceedings. 27 The application for leave is refused. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings.

Borody v Smith & Ors

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