DPP v Whittingham

(3) Craig Wilson, a Victoria Police officer, to attend and produce a number of documents listed in the schedule; and

(4) the Manager or Proper Officer of Victoria Police Human Resources or Personnel Department, to attend to give evidence and to produce a number of documents listed in the schedule.

2 There is also a subpoena issued on 16 January 2019 directed to the Proper Officer, Country Fire Authority, of 20 Hazelwood Road, Morwell, Victoria to produce documents listed in the schedule.

3 When the matter first came before me on 25 January 2019, counsel appearing for the Chief Commissioner of Police claimed public interest immunity in all of the documents sought to be produced under subpoenas 1 to 4. He further submitted that there was no legitimate forensic purpose to be served in producing the documents.

4 Following the usual procedure, the prosecutor in this highly complex and inter-connected matrix of proceedings, Mr Gibson SC, accepted that it fell to him to deal with the issue whether there was a legitimate forensic purpose to be served in producing the documents sought by the applicant. It would only be if that threshold question was decided in Mr Whittingham's favour that the issue of whether or not there was any legitimate claim to public interest immunity or any other privilege against production of the documents would come to be determined.

5 Accordingly, I set down a timetable for submissions, by the Director of Public Prosecutions and Mr Whittingham, directed as to whether or not there was a legitimate forensic purpose to be served in production of the documents.

6 The Director points out in his submission the principles governing subpoenas in the criminal context were summarised by J Forrest J in Commissioner of AFP v Magistrates' Court of Victoria and Di Pietro.[1] His Honour observed that

(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;

(c) the applicant for the witness summons must also satisfy the court that it is 'on the cards', or that there is a 'reasonable possibility', that the documents sought under the subpoena 'will materially assist the defence'.

(d) a 'fishing expedition' is not a legitimate forensic purpose and will not be permitted;

(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.

(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied.

(g) in criminal proceedings a 'more liberal' view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.

(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[2]

7 For the reasons stated in the prosecution submissions in response at paragraphs 12 and 13, I find that there is no legitimate forensic purpose to be served in the production of the documents sought. Moreover, for the reasons detailed in the prosecution response at paragraph 17, I find that it is not 'on the cards' that the material sought would establish any matters relevant to these proceedings. I also find for the reasons stated in the prosecution response at paragraphs 18 and 19 that the issue of these subpoenas amounts to a 'fishing expedition' and ought to be rejected for that reason.

8 Accordingly, the orders of the Court are that the subpoenas be set aside.

[1] [2011] VSC 3 ('Di Pietro')

[2] Ibid [28] (J Forrest J) (emphasis added). See also R v Lyons (Subpoena Leave Application) [2018] VSC 256 [23] (Riordan J); DPP v Voigt (Ruling No 1) [2016] VCC 1678 (Judge Sexton); Holloway v Victoria (Department of Justice) (2015) 73 MVR 145, 164 [59] (Cavanough J).