Environment Protection Authority v Waight

KEY ISSUES: Practice & Procedure :- notice to produce - criminal proceedings - setting aside - too wide

DATE OF JUDGMENT DELIVERY: 12/14/1999

Mr D Buchanan SC With: Mr D Galpin (Barrister)

SOLICITORS: Environment Protection Authority LEGAL REPRESENTATIVES: Mr B Preston SC With: Mr D Newhouse (Barrister)

SOLICITORS: Heidtman & Co

IN THE LAND AND Matter No. 50019-22 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 14 December, 1999

Environment Protection Authority Prosecutor v Michael Jeffrey Waight [No 2] Defendant

By four class 5 summons the defendant is charged with, negligently disposing of waste without lawful authority in contravention of s 5(1) of the Environmental Offences and Penalties Act 1989 (the EOP Act); negligently causing a substance to escape in contravention of s 6(1) of the EOP Act; being the occupier of a controlled waste facility without being the holder of a licence in contravention of s 44 of the Waste Minimisation and Management Act 1995; and that he did pollute waters in contravention of s 16(1) of the Clean Waters Act 1970.

The defendant has served a Notice to Produce requiring the prosecutor produce the following documents for the purpose of evidence: All files of the Environment Protection Authority NSW, together with all file notes, memorandum, correspondence, reports, recommendations, calculations, photographs, video tapes, plans, designs and maps concerning the preparation and issue of proceedings and charges under the Clean Water Act (sic), the Waste Minimisation and Management Act and the Environmental Offences and Penalties Act against Michael Jeffrey Waight of Lot 204, Old Northern Road, Glenorie, NSW, 2157 ("Lot 204"), including all files dealing with the investigation of Lot 204 prior to the issue of proceedings and charges, covering the period from January 1994 to the present.

The prosecutor seeks to have the defendant's Notice to Produce set aside on the grounds that the terms of the Notice are too wide, it effectively requires discovery in criminal proceedings, and is oppressive.

Mr Buchanan SC referred the Court to a number of authorities which he says support the prosecutor's argument.

There is no right of discovery in respect of documents in the possession or control of the prosecutor ( Maddsion and Anor v Goldrick and Anor [1976] 1 NSWLR 651 and Khoder Mohammed Sobh (1993) 65 A Crim R 466).

Starting with The Commissioner for Railways v Small 38 SR(NSW) 564 as further elucidated in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, a subpoena will be set aside if it is used for the purpose of "fishing" or for the purpose of discovery which requires the person to whom the subpoena is addressed to make a judgment as to which of the documents relate to issues between the parties. The principle applies equally to a Notice to Produce addressed to a party and accordingly it is an abuse to use a Notice to Produce to obtain discovery.

Hunt J colourfully described the nature of a fishing expedition in Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 at 295 at follows:- A fishing expedition, as I apprehend that term, means that a person who has no evidence that fish of a particular kind are in a pool seeks liberty to drag it for the purpose of finding out whether there are any there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254.

Quite distinct from an abuse of process by using a Notice to Produce for the purpose of discovery is the objection that a subpoena is too widely or oppressively drawn "not to obtain evidence to support his case, but to discover whether he has a case at all: … or to discover the nature of the other side's evidence" ( Small at 575).

The terms in which the Notice to Produce is expressed are self evidently very wide but, nevertheless provide some particularity by in effect requiring the production of every document held by the EPA and which relate to the charges from January 1994 to date.

The prosecutor does not say the Notice to Produce cannot be complied with. However, there is evidence of the extent of the material that meets the description of the documents and an estimate that it would take about 10 days to copy all of the documents, compile them and then to identify documents in respect of which legal professional privilege is claimed and documents which fall outside the scope of the Notice to Produce. In addition to audio cassettes, video tapes and computer discs, it is estimated there is in excess of 18,000 pages of documents that would require inspection.

The prosecutor recognises that it is not simply a question of the extent of the task itself, but rather the requirement to ascertain the issues and to make a judgment as to the relevance of each document. It is not oppressive to require the production of a large number of documents if sufficient time is allowed.

Mr Preston SC, who appears for the defendant, explained that there was a legitimate forensic purpose in seeking to inspect the documents and that the Court should be satisfied that "it appears to be 'on the cards' that the documents would materially assist the accused" (Hunt J in R v Saleam (1989) 16 NSWLR 14 commenting on the observations by the Chief Justice and Brennan J in Alister v The Queen (1984) 154 CLR 404). In A lister it was stated that, because the proceedings were criminal, special weight had to be given to the fact that the documents might assist an accused person whose liberty is at stake.

In Alister the High Court was considering the exercise of a court's power to inspect documents for which a claim of public interest immunity had been made by a Crown instrumentality.

In EPA v Taylor Woodrow (Australia) Pty Ltd (50030 of 1996 11 October 1996) Bignold J made reference to Saleam and Alister in the context of an application to set aside a Notice to Produce on the ground that the Notice was too wide and being used as a substitute for discovery.

In R v James Saleam [1999] NSWCCA 86 (27 April 1999) Simpson J expressed the opinion that the principles governing applications to set aside orders for the production of documents are no different from those governing applications for access to documents produced in answer to a subpoena. Her Honour said that, "(b)efore access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist the case" . She cited Saleam (1989) and also R v Ali Tastan (1994) 75 A Crim R 498.

Accordingly, while Bignold J appears to have treated Saleam (1989) and Alister as concerning an application to set aside a subpoena rather than an application to inspect documents already produced in Taylor Woodrow , nevertheless Simpson J expressly applied the same principles to the production of documents.

Mr Preston's instructing solicitor has sworn an affidavit annexing correspondence relating to a subpoena addressed to a witness. The solicitors for the company to whom the subpoena is addressed have advised that any documents held in relation to the matters the subject of the subpoena are now in the possession of the EPA. Furthermore, Mr Preston explained in argument that the nature of the offences with which his client is charged demand knowledge of events and observations which occurred over a period starting in 1994, leading up to the date it is alleged the offence took place. He told the Court that a large dam had been constructed on the subject land during that period and that material had been brought onto and deposited onto the property for that purpose. The site had been the subject of investigation and observation by the EPA over that period of time.

The nature of the charges laid against the defendant to a large extent invariably demand an appreciation and consideration of the state of the land before and after the events complained of and an understanding of actions leading up to those events. Mr Buchanan complains that, even though that may be true, the Notice to Produce nevertheless lacks the particularity required in respect of the particular subject matter.

In Saleam (1989) the subpoena sought the production of every document relating to the investigation and prosecution of the offences with which the appellant and the co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at the trial. Hunt J commented that the subpoena was far too widely drawn, even though the documents sought were specified with some particularity, "in that in effect every document in the possession of the police had to be produced" . Although the subpoena had been complied with, his Honour observed that there could have been no legitimate forensic purpose in having produced many of those documents. In that case, the time for the Commissioner to complain of the width of the subpoena had passed and the question to be decided was whether the legal advisers could have access to the documents in dispute. It was decided that, as it was at least "on the cards" that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents, access should be granted.

As Simpson J observed in Saleam (1999), the Court should not shrink from making an order to produce documents, even though it involves a financial and personal burden on the prosecutor.

However, a proper reading of the Notice to Produce in this case effectively means that the prosecutor is required to produce every document that is in its possession and which concerns the preparation and issue of the proceedings and charges from January 1994 to the present. The charges relate only to a period between 1 August 1997 and 19 May 1998.

It is difficult for the Court to make an informed decision about the extent of assistance the documents will provide for a legitimate forensic purpose in the absence of the documents.

In the meantime what the Notice seeks is production of all documents related to the proceedings that are in the custody or control of the prosecutor. A Notice to Produce must specify, with reasonable particularity, the documents that are required to be produced. Until that is done in the present case and documents are produced in answer to a proper Notice to Produce, it is not practicable to determine whether there is a legitimate forensic purpose in making them available for inspection.

During his address Mr Preston referred the Court to the duty of a prosecutor to ensure that all relevant evidence is made available to an accused, together with help to have the opportunity of considering all the material evidence which has been gathered and from which the prosecution has made its own selection ( Hennessey (1979) 68 Cr App R 419 and Ward (1993) 96 Cr App R 1). These principles are now found embodied in the New South Wales Bar Rules and Law Society of New South Wales Solicitors Rules.

There is no suggestion that the prosecutor has failed heretofore in these proceedings or has any future intention not to abide these principles.

Although the duty to give full disclosure has been emphasised over the last 25 to 30 years, that principle nevertheless does not obviate the need for a subpoena or Notice to Produce to contain the necessary element of particularity.

The Notice to Produce in its present form, in my view, is tantamount to discovery and accordingly should be set aside.

The formal order of the Court is that the defendant's Notice to Produce be set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.