[2026] ACTMC 3

Application to set aside the subpoena dated 12 November 2025 issued to the City and Environment Directorate is dismissed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Subpoena - Subpoena issued by respondent - application to set aside subpoena - whether legitimate forensic purpose - whether fishing expedition

Court Procedure Rules 2006 (ACT), regs 6604, 6609(12)

Crimes Act 1900 (ACT), ss 26, 28(2), 218

Evidence Act 2011 (ACT)

Human Rights Act 2004 (ACT), s 22

Albert v Lavin [1982] AC 546

Alister v The Queen [1984] HCA 85

Attorney General (NSW) v Chidgey [2008] NSWCCA 65

Commissioner for Railways v Small (1938) 38 SR (NSW) 546

DPP v Baker [2023] ACTSC 378

DPP v Basic [2024] ACTSC 197

DPP v Enoch (No 2) [2025] ACTSC 332

DPP v Enoch [2025] ACTSC 330

DPP v Makoi [2023] ACTSC 125

Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Jago v District Court [1989] HCA 46

Jespers v Belgium (1983) EHRR 305

Kerber v Towler [2014] WASC 419

McKinnon v The Queen [2004] NTCCA 8

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498

R v Clearihan [2002] ACTSC 60

R v Colleary (No 12) [2022] ACTSC 108

R v Forsyth [2013] ACTSC 179

R v Howell [1982] QB 416

R v Rondo [2001] NSWCA 251

R v Saleam (1989) 16 NSWLR 14

R v Youssef (1990) 50 A Crim R 1

Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2021] FCA 584

Secretary for the Environment v Blacktown City Council [2021] NSWCA 145

Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 35

Zirilli v The Queen [2021] VSCA 2

1. This is an application by the Director of Public Prosecutions of the Australian Capital Territory (DPP) seeking orders to set aside a subpoena on the basis that it is a 'fishing expedition' and lacks a legitimate forensic purpose.
2. The subpoena seeks the production of documents relating to the complainant, as this person was a minor at the time of the incident in question. He is referred to only as 'the passenger' in these reasons.

All records and documents including any correspondence, emails, notes of telephone calls, file notes, electronic records or any other records in relation to: > > (a) Any incident or occasion where Vincente Ruiz, DOB: 28/2/61, was assaulted or made some kind of incident on or near a bus; and > > (b) Any reported incident involving [the passenger].

2. By way of an interim application dated 12 November 2025, the DPP sought to have the subpoena set aside.
3. The Court Procedure Rules 2006 reg. 6604 provides:

(1) On the application of a party or someone else having sufficient interest, the court may set aside a subpoena completely or partly, or grant other relief in relation to it.

1. By the time of the final hearing, the documents had been produced. There was no objection to access from Access Canberra, the objection is made by the DPP.

1. The respondent is charged with two offences against the passenger:

(a) Common assault, contrary to section 26 of the Crimes Act 1900, and

(b) Choke/strangle/suffocate, contrary to section 28(2) of the Crimes Act 1900.

1. At the time of the alleged offending, the respondent was employed as an ACTION bus driver. He had been in this role for some 20 years. As part of his defence to the charges, the respondent says that he was affecting a 'citizen's arrest' and therefore had lawful authority for laying hands on the passenger.
2. CCTV footage of the incident was played to the Court. It shows the respondent sitting at the driver's wheel, behind a perplex glass shield. The passenger goes to exit the bus and hits the glass as he passes. The respondent stands, opens the door to the cabin area and then exits the bus in pursuit of the passenger. A brief physical altercation ensues outside the bus. The respondent returns toward the bus.
3. The respondent asserts that the passenger "is one of the most disruptive passengers on the Transport Canberra network". He further says that his brother, a fellow bus driver, was assaulted by the passenger in 2021, and that other bus drivers shared their experiences of the passenger with him. Hence, he was familiar with the passenger and his alleged record of misbehaviour on Canberra buses, and this is why he effected the arrest.
4. The respondent seeks, by way of subpoena, the footage of the alleged previous incidents of misbehaviour and the alleged assault on the respondent's brother.
5. The DPP says that the documents cannot be relevant to any matter in issue before the Court and the subpoena should be set aside.

1. The DPP submitted that the legal principles governing the validity of a subpoena are well settled and are outlined in DPP v Enoch [2025] ACTSC 330 at [15]- [26] (Enoch):

(a) The issuing party bears the onus of establishing a legitimate forensic purpose;

(b) An issuing party must demonstrate "a reasonable basis beyond speculation" (or that it is "on the cards") that the documents "will materially assist" in the asserted legitimate forensic purpose'

(c) A "fishing expedition" is not a legitimate forensic purpose and will not be permitted; and

(d) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

1. The DPP's argument for setting aside the subpoena has two limbs.
2. First, the DPP says that the subpoena is a fishing expedition. The schedule is not specific enough to an assault by the complainant on Mr Vincente Ruiz or the respondent instead extending to 'any' incident reporters involving the respondent's brother or the complainant. Moreover, the subpoena specifies no location or time frame. It is impermissibly wide, speculative and general.
3. Secondly, the DPP says the subpoena serves no legitimate forensic purpose.
4. A 'citizen's arrest' is not itself a defence to criminal conduct.
5. Moreover, it is not clear how the documents could be 'on the cards' as assisting the respondent's case in relation to a citizen's arrest. The wording of the subpoena is very broad, with no date limitations, and includes a request for information about 'any' incident reports made by the respondent's brother or about the passenger - not confined by time or subject matter. Any documentary reports or evidence of such a general and tangential nature as the material sought to be disclosed could not properly be relevant to the Court's assessment of the respondent's state of mind.
6. In any case, the respondent's state of mind is not dependent upon the veracity of any reports about his brother or the complainant. Whether a person may legitimately engage in a 'citizen's arrest' depends on whether the person has a general belief or suspicion, not on whether that belief or suspicion is correct - i.e. it is the respondent's state of mind that is in issue. Corroborating the truthfulness of his state of mind is not a legitimate forensic purpose.
7. Further, the Court should exercise restraint and caution in permitting subpoenas to be used for information relevant only to credit - noting in particular the observations of his Honour Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2021] FCA 584 (Roberts-Smith) that it is not permissible to "spectacularly trawl through documents that may possibly be used to impugn a witness's credit" (at [31]) and there must be a "probable connection" between the documents and the credit issue (at [31]).

1. In the ACT, the power to effect a citizen's arrest is found in s 218 of the Crimes Act 1900. It provides as follows:

Power of arrest without warrant by other persons

(1) A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.

(2) A person who arrests another person under subsection (1) shall, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a police officer.

1. The respondent relies both upon section 218, and on the common law power to arrest for a breach of the peace (R v Howell [1982] QB 416, Albert v Lavin [1982] AC 546 per Lord Diplock). In broad terms, the common law allows a citizen to effect a citizen's arrest where a breach of the peace is committed in their presence or they reasonably believe that such a breach will be committed in the immediate future.
2. A reasonable belief or suspicion may be based upon hearsay information told to the person making the arrest by others - while ordinarily inadmissible, such evidence may be admissible for a non-hearsay purpose: R v Rondo [2001] NSWCA 251 at [53].
3. Further:

(a) It is an element of the offence of common law assault that the respondent act without lawful excuse or justification: DPP v Baker [2023] ACTSC 378 at [57]; DPP v Makoi [2023] ACTSC 125 at [305], R v Clearihan [2002] ACTSC 60 at [14] and [16].

(b) It is also an element of the offence of choke, strangle or suffocate that the act be done unlawfully: DPP v Basic [2024] ACTSC 197 at [8].

1. It is incumbent on the prosecution to prove every element of the offence beyond reasonable doubt. A lawful arrest provides a defence of lawful justification or excuse to assault, battery and imprisonment which occurred due to the arrest: McKinnon v The Queen [2004] NTCCA 8, Kerber v Towler [2014] WASC 419. While it is for the prosecution to exclude beyond reasonable doubt the possibility that the respondent had lawful authority for his actions, the respondent has an 'evidential burden' in relation to the 'excuse' of a citizen's arrest: Criminal Code 2002 s 59. This will be satisfied if the respondent is able to point to or produce evidence from which it can be inferred that there is at least a possibility that the defence of lawful justification was active: R v Youssel (1990) 50 A Crim R at [4].
2. While agreeing with the factors as per Enoch, the respondent noted authority that the term 'on the cards' is a "metaphor, not a descriptor to be given a literal, and arithmetic, meaning". Ordinarily, it means nothing more than a "reasonable possibility" and is to be approached "with flexibility and common sense in order to give the accused a fair opportunity to test the Crown's case and to take advantage of any applicable defences" Zirilli v The Queen [2021] VSCA 2 (Zirilli); [2021] VSCA 2; 287 A Crim R 407 at [95]- [98], DPP v Enoch (No 2) [2025] ACTSC 332 at [25] (Enoch (No 2)).
3. The test does not appear to be a high one - as was observed in Secretary for the Environment v Blacktown City Council [2021] NSWCA 145 per Bell P (with whom McCallum J as her Honour then was agreed) (Blacktown City Council) explained at [40] in relation to Zirilli:

"...a party may be materially assisted in its case by knowing what apparently relevant documents say; even if those documents may not ultimately materially advise that party's case."

4. Given the stakes involved in criminal proceedings, particularly in relation to alleged offending punishable by imprisonment, a more beneficial approach should be taken (citing R v Colleary (No 12) [2022] ACTSC 108 at [103]). Obtaining documents relevant only to a witness' credibility may constitute a legitimate forensic purpose: Roberts-Smith at [31]; Enoch (No 2) at [18].
5. Having regard to these submissions, the defence submitted that the subpoena is not too wide, it is not fishing and serves a legitimate forensic purpose.
6. As to the fishing expedition argument, the respondent is an experienced bus driver, he knows incident reports must be filed after each encounter with a difficult passenger. He has reason to believe incident reports were filed in relation to the passenger and that they will confirm what he says he has been told by others. If he is correct about this, the documents will bolster the credibility of assertions about his state of mind.
7. In relation to the legitimate forensic purpose, the respondent submitted that his case at hearing will be that his decision to effect a citizen's arrest was not only informed by the passenger's conduct that he witnessed but also what had been conveyed to him about that conduct by his brother and other drivers:

"...his case should not only have to turn on his (uncorroborated) assertions as to the prior incidents which had been conveyed to him about [the passenger's] behaviour...his contention that these prior incidents informed his decision to effect a citizen's arrest should not have to turn on his assertion alone. Rather, he is entitled to adduce evidence which tends to corroborate his contention."

8. The defence also made reference to the respondent's right to a fair trial as established by section 22(1) of the Human Rights Act 2004 (HR Act) and acknowledged by the High Court in Jago v District Court [1989] HCA 46; 168 CLR 23 at 56 - 57. Referring to section 22(1)(b) of the HR Act, counsel for the respondent pointed to the authority from the European Court of Human Rights decision of Jespers v Belgium (1983) EHRR 305 that an accused has a right to all necessary facilities to make out their defence, and a 'facility' may include a 'document', including a document that goes to credibility.

1. It is not for this court hearing this application to determine whether there is any merit to the 'citizen's arrest' argument; it only needs to consider whether to allow or disallow the subpoena having regard to the arguments that will be advanced at the substantive hearing.
2. The DPP has set out the principles in relation to subpoenas, and the respondent does not cavil with them.
3. It is a well-established legal principle that the party at whose request the subpoena was issued must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought: R v Saleam (1989) 16 NSWLR 14 at 18 (Saleam); Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]. It is the issuing party who bears the onus of establishing a legitimate forensic purpose: Attorney General (NSW) v Chidgey [2008] NSWCCA 65, (2008) 182 A Crim R 536 at [5] (Chigdey).
4. A 'fishing expedition' is not a legitimate forensic purpose and will not be permitted: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414; Saleam at 17.
5. It appears to be common ground that a legitimate forensic purpose exists in a criminal case if it is 'on the cards' that the documents sought "will materially assist [the issuing party's] case": Chigdey at [59], [64]; Saleam [at 18] - although that wording does not suggest any mathematical analysis, but rather requires the 'real possibility' that the documents will assist the respondent's case: Enoch at [25]; Blacktown City Council per Bell P at [40].
6. A court must exercise caution when a subpoena is sought to be justified solely on the basis of credit, with the judge needing to wary of the potential for abuse and the need to keep cross examination within manageable limits. A subpoena that does little more than speculatively trawl through documents that may possibly be used to impugn a witness' credit have never been justifiable: Roberts-Smith; Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 35 at [19].
7. As to whether the subpoena to City Services is a 'fishing expedition', I am satisfied it is not. Obviously, a party is only entitled to use a subpoena to obtain evidence to support its case rather than to discover whether it has a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 546 at 575. That is not the situation here. The respondent knows what his defence will be and he believes with reasonable basis that there are documents (incident reports) corroborating it. He knows those documents are created by bus drivers such as himself following incidents with passengers. He believes some of those documents will relate to reports made by his brother and relate to the passenger. He is not trawling for fish in a large lake, he knows there are fish in the pond and wants to scoop them out.
8. The subpoena, and particularly the call for documents relating to incident reports made by his brother about "some kind of incident...on or near a bus" is broadly worded. The language would capture not just confrontations with passengers, but also incidents such as OH&S issues which would likely be relevant, however other incidents, such as broken tyres, which would also be captured, would clearly be irrelevant. This wording could and should have been more precisely and narrowly drafted (although there was no argument that the scope was oppressive). Given more time, the appropriate remedy to the breadth of the subpoena may have been narrowing the terms of the subpoena or at least partly setting it aside. However, given the impending hearing date, returning the documents to City Services in anticipation that they would be produced again in response to a more narrowly scoped subpoena is unlikely to be a quick or efficient approach.
9. Turning to whether it is 'on the cards' that the documents will be relevant to the respondent's claim to have been executing a 'citizen's arrest', the respondent contends that his state of mind was influenced by discussions he had with his brother and other drivers about the passenger. The documents may go to his credit. One can draw the commonsense inference that a passenger involved in many incidents would become the subject of lunchroom gossip, as alleged by the respondent, and being able to establish that there actually were previous events involving the passenger may corroborate his claims to have held a particular state of mind.
10. Caution should of course be exercised by the court when allowing subpoenas that may unduly broaden the scope of a hearing, particularly cross examination, and undermine quick, inexpensive and efficient justice (see Court Procedures Act 2004). However, I accept that the need for a fair trial may require more latitude for defendants in criminal proceedings than in other matters - the need for a fair trial, and the documents required to ensure a fair trial, being a recognised human right.
11. As to the human rights argument, and particularly the reference the HR Act, as was noted by her Honour Penfold J in R v Forsyth [2013] ACTSC 179 at [34]

"...a person who seeks to rely on a right set out in the Human Rights Act because it is set out in that Act (as distinct from, for instance, relying on protections provided by the common law for rights of a kind that also happen to be described in the Human Rights Act ) is obliged to bring his or her claim within the scope of the Human Rights Act provisions setting out how rights recognised in that Act may be relied on."

1. It is not entirely clear how the respondent relies upon s. 22 of the Human Rights Act. However, the common law right to a fair trial is well recognised. Within this context, the High Court has recognised "the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case:" Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ at [35].
2. As I understand the respondent's argument, it is that, in exercising any discretion available to me in relation to this interim application, I should bear in mind the right to a fair trial, and take into account jurisprudence, including in the context of international human rights law, in considering how to give effect to that right. I agree that I should consider the respondent's right to a fair trial in the exercise of my discretion, and I accept this includes a right to access relevant material for his defence, save where there is a legally recognised basis for withholding it from him.
3. I note for completeness that I have taken a beneficial view of the respondent's case and the documents he says may support it. Accordingly, to the extent that I have discretion not to set aside a subpoena, I would decline to do so in this case. As noted at the outset, it is not the role of the Court in this matter to assess the strength of the respondent's case, only to determine whether the documents could materially assist him to make it. Whether those documents would ultimately be admissible is a different question.
4. The application to set aside the subpoena to City and Environment is dismissed.
5. Rule 6609(12) of the Court Procedures Rules 2006 (ACT) provides that:

Usual order in relation to a document or thing, means an order that the party given first access to inspect and copy the document or thing has exclusive access to the document or thing for 5 days after the day the order is made, then any other party to the proceeding has access to inspect and copy the document or thing.

6. I make the usual order granting access to the respondent.

(1) The application of 12 November 2025 to set aside the subpoena to City and Environment is dismissed.

(2) The respondent is given first access to inspect and copy the documents and exclusive access to the document or thing for 5 days after the order is made, then any other party to the proceeding has access to inspect and copy the document or thing.

I certify that the preceding [50] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Robinson.