Mann v Commissioner of Police

Supreme Court of NSW|2020-04-02|Before: Adamson J

Solicitors: Aboriginal Legal Service (Plaintiff) Makinson d'Apice Lawyers (First Defendant) File Number(s): 2019/302406 Decision under appeal Court or tribunal: Local Court of NSW Date of Decision: 26 June 2019 Before: McGowan LCM File Number(s): 2019/302406

Introduction

By summons filed on 27 September 2019, Melinda Mann (the plaintiff) seeks leave to appeal against the decision of McGowan LCM (the magistrate) made on 26 June 2019 setting aside a subpoena issued to the Commissioner of Police, the first defendant (the Commissioner). The subpoena sought the criminal records of witnesses to be called as prosecution witnesses in the Local Court in summary proceedings in which the plaintiff stood charged with three offences: common assault, assault occasioning actual bodily harm and intentionally or recklessly destroy/damage property (the offences).

Crimes (Appeal and Review) Act 2000 (NSW)

Section 53(3) of the Act relevantly provides: "Any person against whom - … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court."
Section 54(1) of the Act provides that this Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. Under s 54(4), if the Court grants leave to appeal, it may proceed to hear the appeal immediately or adjourn the appeal proceedings.
Section 55(3) of the Act relevantly provides that this Court may determine an appeal against an order referred to in s 53(3)(b) by setting aside the order and making such other order as it thinks just, or dismissing the appeal.

Other relevant provisions

Section 70(1)(c) of the Local Court Act 2007 (NSW) provides that an appeal to this Court may be made in accordance with Part 5 of the Act in the same way as such an appeal may be made in relation to a conviction from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW).
Section 69 of the Supreme Court Act confers jurisdiction on this Court to give relief in the nature of prerogative relief for jurisdictional error and error on the face of the record.
Section 227 of the Criminal Procedure Act 1986 (NSW) provides: "227 Subpoena may be set aside (1) A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part. (2) Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued."

The laying of charges

On 1 January 2019 the plaintiff was charged with the offences by court attendance notice. The matter was listed before the Local Court at Wagga Wagga on 20 February 2019. On that day, the plaintiff entered pleas of not guilty. The matter was set down for a defended hearing on 27 June 2019.

The plaintiff's request for disclosure of the criminal records of prosecution witnesses

On 22 May 2019, the plaintiff's solicitor wrote to the officer in charge of the investigation (the OIC) and said: "I'm instructed that the two prosecution witnesses in this matter have criminal convictions in NSW and am writing to request a copy of their criminal antecedents. These antecedents will be relevant to the way in which I intend to defence [sic] Ms Mann in these matters."
The police prosecutor responded on 30 May 2019 as follows: "I can indicate to you that there are no matters to disclose that I could reasonably consider as relevant in this matter."
I note that Mr Rofe, who appeared for the plaintiff before the magistrate, inferred from this response that the police prosecutor conceded that the witnesses did have criminal records. However, Ms Wasley, who appeared on behalf of the plaintiff before me, accepted that the prosecutor had made no such concession.

The issue of a subpoena

On 31 May 2019, the plaintiff's solicitors, the Aboriginal Legal Service (ALS), served a subpoena seeking production of the criminal histories and criminal antecedents of the two complainants. The subpoena was listed for mention on 19 June 2019 and stood over to 26 June 2019 on the basis that the Commissioner proposed to object to the subpoena. On 25 June 2019, the Commissioner served an application to set aside the subpoena pursuant to s 227 of the Criminal Procedure Act 1986 (NSW) on the basis that no legitimate forensic purpose had been identified.

The hearing of the application by the magistrate

The Commissioner's application was heard by the magistrate on 26 June 2019. Mr Coffey, who appeared on behalf of the Commissioner, relied on written submissions to the effect that the subpoena had not been shown to have a legitimate forensic purpose. Mr Rofe, who appeared on behalf of the plaintiff, identified what he alleged were two forensic purposes: first, "to attack the character of the prosecution witnesses" and, second, "to attack the credit of the prosecution witnesses". He relied on R v Jenkin (No 2) [2018] NSWSC 697 (Jenkin) and R v Mokbel (Ruling No 1) [2005] VSC 410 in support of the submission that it was not for the Commissioner to decide what was, and what was not, relevant to the defence case.
Mr Rofe said, in oral submission to the magistrate: "I do note that the two prosecution witnesses are of the Mann family as well. It's all a Mann case. I also note that it is an allegation [sic] where the two prosecution witnesses will get in the witness box for the prosecution to prove their case. The defendant will get into the witness box as well in terms of a defence case, and the defence is very much entitled to put previous convictions and discredit the witnesses and also put in issue character. That's very much open to the defence to do this and the ALS using [sic, is in] that rare position on this occasion where they can put character in issue and attack the character of the prosecution witnesses. That's not a controversial legitimate forensic purpose as well. [Mr Rofe cited Hamill J in Jenkin at [30] and [33] before continuing.] So it's very much a matter where assessing the witness' character and - because that will be put in issue and the credibility in terms of adducing and finding the facts in this matter will be material to the outcome."
In response, Mr Coffey submitted that the plaintiff had not identified how any criminal histories of the prosecution witnesses would assist her in defending herself in the prosecution of the charges. Mr Coffey sought to distinguish Jenkin but also submitted that if Jenkin were read as broadly as Mr Rofe contended it ought to be, it would be inconsistent with higher authority such as Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (Chidgey); and Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (Carroll).
The magistrate delivered ex tempore reasons at the conclusion of argument. Her Honour referred to Chidgey and concluded that "the applicant must identify the legitimate forensic purpose for which access is sought and establish it is on the cards that the documents will materially assist [her] case." Her Honour identified the plaintiff's submission that her forensic purpose was to "hopefully cast doubt on the character and credibility" of the two complainants. Her Honour said: "Mr Rofe says, 'Well we don't care what the position of the Commissioner or the prosecutor is, we need these records to be disclosed so we can make up our own mind,' and the forensic purpose is to hopefully cast doubt on the character and credibility of the complainant - both complainants in this matter."
Her Honour continued: "You will note that I used the word 'hopefully'. In my view, I am not of the view that the defence has shown that it is on the cards that the documents will produce anything that may assist them. There are other alternatives available to the defence. Cross-examination for example. Ask several questions - searching questions. And Mr Coffey is quite right, if the test was expanded, if I can put it that way, then it would be in every case for the person - complainant or witness' criminal antecedents, if there were any, laid bare to the defence and possibly subsequent to the Court and the community at large."
Her Honour referred to Jenkin as follows: "Mr Coffey on behalf of the Commissioner in response to the submissions regarding the case of Jenkin says this case is - can be distinguished. In Jenkin it was, as I understand it, a serious offence. It is not what these are and it may have been more obvious that there may have been matters in a person's criminal antecedents that were relevant to those charges before the Court. It cannot be the case that every complainant's antecedents are laid bare. It cannot be the case at all.
Her Honour concluded: "I will set aside the subpoena, having made the findings that whilst there may be forensic reasoning behind it, I am not of the view that the applicant is - the issue of a subpoena has shown that there is - it is on the cards that the disclosure of the complainant's antecedents will assist materially he says - that is what the test says, it is not perhaps or maybe in a peripheral way - materially assist the case."
Following the making of orders, Mr Rofe foreshadowed an appeal to this Court. On this basis, the hearing of the matter in the Local Court was adjourned.

The general principles

The outcome of this appeal turns on the application of the general principles to the present case and the effect, if any, of the judgment of Hamill J in Jenkin in the present context.
The general principles are not in issue. Once the ambit of a subpoena is put in issue, the issuing party is obliged to identify a legitimate forensic purpose for which the documents are sought. It is not sufficient that the documents falling within the ambit of the subpoena could, or might be, relevant, it must actually be 'on the cards'. Subpoenas are not to be used for the purposes of "fishing expeditions".
In an oft-cited passage, Beazley JA (James and Kirby JJ agreeing) in Chidgey said at [64]: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: 'The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before 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 his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.'"
Beazley JA proceeded to address the meaning of "on the cards" and adopted the test approved by Bell J in Ragg v Magistrates Court of Victoria (2008) 18 VR 300; [2008] VSC 1 at [96] in which his Honour said, in the context of a criminal trial: "A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial that there is a reasonable possibility that the documents will materially assist the defence."
The Court of Criminal Appeal in Chidgey expressly disapproved of Adams J's formulation of the test of legitimate forensic purpose in Roads & Traffic Authority of NSW v Conolly (2003) 57 NSWLR 310; [2003] NSWSC 327 (Conolly) at [12] where his Honour said, after considering the phrase "on the cards": "… [I]t seems to me that the relevant "range" is therefore between the barely probable and highly probable. With respect, it seems to me that this area of the law is bedevilled with metaphors. I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists, and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified. Thus, subpoenas issued for the production of criminal records of witnesses whose credit is in issue in a trial will almost invariably be liable to production, even if the defendant is unable to say, one way or another, whether the person has such a record and, if so, whether it might reasonably be regarded as reflecting on his or her credit." [Emphasis added.]
Beazley JA rejected this approach at [79] in the following terms: "The likely effect of his Honour's approach is to create a situation whereby, provided relevance is established, there will almost always be a 'reasonable chance' that the material will assist an applicant seeking production of documents to establish the case proposed be made at the trial. As is apparent from Alister, Carroll and R v Saleam [1999], something more than that is required and in my opinion the approach of Adams J should not be followed."
Applications to set aside subpoenas for the production of the criminal histories of prosecution witnesses have been considered in the authorities although, in the main, the issues have been resolved by agreement prior to or during the course of the hearing (see, for example, Jenkin and Bradley v Senior Constable Chilby [2020] NSWSC 145 (Bradley)) or have related to the prosecutor's duty of disclosure (as in R v Thompson [1971] 2 NSWLR 213).
Further, the identification of "legitimate forensic purpose" is a matter which is peculiarly contextual. Thus it is not productive to seek to draw conclusions from the authorities beyond the statements of general principle expressed in cases such as Chidgey.

The grounds of appeal

The plaintiff raises the following grounds of appeal, which will be addressed in turn: "1. The Magistrate erred in her assessment and consideration of the identified legitimate forensic purpose: Particulars a. Her Honour wrongly assessed the legitimate forensic purpose as being one where the Plaintiff sought disclosure of the criminal histories to check whether the Commissioner had complied with his duty of disclosure b. Her Honour wrongly assessed the legitimate forensic purpose as being one where the Plaintiff sought the criminal histories to 'hopefully' cast doubt on the character and credibility of the complainants. 2. The Magistrate erred in finding that it was 'not on the cards' that the subpoena would materially assist the Plaintiffs case. 3. The Magistrate erred by failing to apply the proper test as per Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 and by taking into irrelevant considerations: Particulars a. Her Honour wrongly considered that there were other alternatives available to the Plaintiff, such as cross-examination; b. Her Honour wrongly considered that acceptance of the Plaintiff's arguments would result in an expanded test whereby in every case a person's criminal history would be 'laid bare' to the Defence and possibly to the Court and the community at large. c. Her Honour wrongly considered that it 'cannot be the case that in every matter that the complainant's antecedents are laid bare' [capable of being subpoenaed]. 4. The Magistrate erred in dismissing the reasoning in R v Jenkin (No.2) [2018] NSWSC 697 as being relevant and applicable in this case by distinguishing that case on its facts."

Ground 1: alleged error in assessment of legitimate forensic purpose

This Court's jurisdiction to review interlocutory orders of the Local Court is confined to grounds that raise questions of law alone.
Ground 1 is said to arise from her Honour's reasons extracted above in which her Honour purported to summarise Mr Rofe's submissions. The plaintiff submitted that, in effect, the magistrate characterised the plaintiff's legitimate forensic purpose as to "check" on whether the Commissioner had complied with his duty of disclosure (ground 1(a)) in the "hope" that the documents produced would provide a basis to impugn the credibility or character of the complainants (ground 1(b)).
I am not persuaded that ground 1(a) can be made out on a fair way of reading her Honour's reasons. It is well established that a party who is dissatisfied with a prosecutor's compliance with the duty of disclosure is entitled to have a subpoena issued to obtain the documents sought: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142. In the present case, the plaintiff's solicitor corresponded with the police prosecutor for that purpose and, having received no documents, arranged for a subpoena to be issued. I do not regard her Honour's reasons as doing other than recording this process, which was open to the plaintiff. In these circumstances it is not necessary to determine whether ground 1(a) gives rise to a question of law alone since it has not been made out.
Ground 1(b) seeks to challenge her Honour's analysis of the plaintiff's motivation in seeking the documents under subpoena. Once again, I consider that Mr Rofe's submissions (extracted above) were to the effect that the plaintiff wanted the documents with a view to obtaining a basis to impugn the credibility and character of the complainants, as understood by the magistrate.
Ms Wasley submitted that the plaintiff's identification of legitimate forensic purpose included each of the following: 1. the plaintiff belongs to the same family as the two complainants; 2. the plaintiff has instructed her solicitors that the complainants have either criminal convictions or criminal antecedents; 3. the plaintiff's representatives propose to use the documents produced to cross-examine the complainants, including as to their (bad) characters; and 4. the plaintiff proposes to give evidence herself and is confident to raise the bad character of the prosecution witnesses because she does not have a criminal history herself.
Nonetheless, the proposed use of the documents (item (3) above) was, properly understood, the forensic purpose of the subpoena whereas items (1), (2) and (4) were circumstances by which Mr Rofe sought to distinguish the present case from the usual case where an accused person wanted the criminal histories and antecedents of prosecution witnesses. I do not discern any error in her Honour's analysis.

Ground 2: alleged error in the finding that it was 'not on the cards' that the subpoena would materially assist the plaintiff's case

Ground 2 would appear to raise a mixed question of fact and law and therefore fall outside this Court's jurisdiction under s 53(3)(b) of the Act. I decline to address ground 2, as it does not fall within my jurisdiction. However, I am satisfied that ground 3 as formulated does give rise to a question of law alone and incorporates many of the plaintiff's submissions in relation to ground 2 which will, accordingly, be considered below.

Ground 3: alleged failure to apply the correct test and alleged taking into account irrelevant considerations

Ground 3, in effect, contains three sub-grounds: 1. that her Honour did not apply the correct test; 2. that her Honour impermissibly took into account that there were other alternatives available to the plaintiff if the subpoena were set aside (particular (a)); 3. that, if the subpoena were not set aside, the result would be that the criminal history of every prosecution witness would potentially become public, which could not be the case (particulars (b) and (c)).

Whether the magistrate applied the correct test

The test, which was authoritatively stated in Chidgey, was the test that her Honour applied. The test required an affirmative answer to the following two questions: first, has the party at whose request the subpoena was issued identified a legitimate forensic purpose for the documents; and, second, was it "on the cards" that the material would materially assist the accused? It was not sufficient that there was a reasonable chance that the material, if produced, would assist the defence case in some way: this was the test formulated by Adams J in Conolly which was expressly disapproved in Chidgey.
The expression "on the cards" was first used in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 where Gibbs CJ said at 414, in the context of a claim for public interest immunity: "Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial ..., so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence." [Citations and footnotes omitted.]
The "on the cards" test was adopted by Hunt J in R v Saleam (1989) 16 NSWLR 14 at 18, by analogy in the context of a subpoena issued to police, as appears from the following passage: "In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf. Waind v Hill [1978] 1 NSWLR 372 at 385), and the judge's initial refusal to permit inspection should always be open to review. The problems which arise when counsel is unable to formulate such a submission with clarity are well exemplified by the decisions in Maddison v Goldrick [1976] 1 NSWLR 651 at 666 and in R v McPhail (Court of Criminal Appeal, 15 December 1988, unreported at 25-28). In my view, the criterion finally suggested by Gibbs CJ in Alister v The Queen as that which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is 'on the cards' that the documents would materially assist the accused in his defence."
His Honour continued, in a passage on which the plaintiff relied in this Court: "… If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents."
Hunt J also said, at 21, in the context of the question whether new material will lead to the quashing of a conviction: "… Where the additional material goes only to impugn the credit of Crown witnesses, the test is no stricter …"
I note that the Court of Appeal in Jovanovski v R [2008] NSWCCA 9; (2008) 181 A Crim R 372 (Hodgson JA, Kirby and Buddin JJ agreeing) expressed reservations at [22]-[23] about the correctness of this statement in light of the provisions of the Evidence Act 1995 (NSW) and, in particular s 103 which excepts the credibility rule from cross-examination of a witness "if the evidence could substantially affect the credibility of the witness" (Emphasis added); see also, R v RPS (Court of Criminal Appeal (NSW), 13 August 1997, unrep) Hunt CJ at CL (Gleeson CJ and Hidden J agreeing). There was no material before her Honour to enable an assessment to be made as to whether, and to what extent, the documents sought could affect the credibility of the prosecution witnesses. In these circumstances, the question of substantial effect did not need to be addressed as a separate consideration to the issues of legitimate forensic purpose and the "on the cards" test.
In the present case, her Honour was neither satisfied that the plaintiff had identified a legitimate forensic purpose, nor that it was "on the cards" that the documents sought would materially assist the plaintiff. Accordingly, the subpoena was set aside. I am not persuaded that her Honour applied the incorrect test or that it was not open to her Honour to find as she did. This aspect of ground 3 has not been made out.

Whether her Honour impermissibly took into account that there were other alternatives available to the plaintiff if the subpoena were set aside

This ground (3(a)) derives from what her Honour said in the passage set out above about there being other forensic alternatives if the subpoena were not set aside. The existence of alternatives does not answer the question whether a party at whose request a subpoena has been issued has a legitimate forensic interest in the documents. In that sense, the existence of alternatives was irrelevant to the determination of whether the plaintiff had a legitimate forensic interest in the documents sought under subpoena. However, it does not follow from the fact that her Honour mentioned an alternative, cross-examination, that her Honour decided that the plaintiff's forensic purpose was not legitimate because of a forensic alternative (cf. Bradley at [73]). A fair reading of her Honour's reasons is that the plaintiff had not established a legitimate forensic interest in the documents and, in any event, the plaintiff would still be able to cross-examine the complainants as to their criminal histories or antecedents, albeit without the benefit of documents to put to them.

Whether her Honour decided the application on the basis of a perceived consequence for other cases: that the criminal history of every prosecution witness would be potentially become public

In the passage extracted above, her Honour expressly accepted Mr Coffey's submission that if the criminal histories of these prosecution witnesses were amenable to subpoena, the criminal histories of all prosecution witnesses would be amenable to subpoena. In substance, Mr Coffey submitted that there was nothing to take the present case out of the ordinary case where there was no particular feature which gave the accused person a legitimate forensic purpose in obtaining part or all of the criminal record of prosecution witnesses.
It is a time-honoured feature of legal rhetoric and reasoning to use an argument, as Mr Coffey's was, based on the device known as reductio ad absurdum. Her Honour accepted the argument, in effect, because she was not satisfied either that there was any forensic purpose beyond that which would exist in any criminal case or that it was on the cards that the documents would materially assist the plaintiff's case. Her Honour was entitled to accept the argument on the basis of the disapproval of Conolly in Chidgey.
The present case can be readily distinguished from a case such as Bradley where the nature of the offence charged and the circumstances surrounding the alleged offending conduct made the criminal history of the complainant material in so far as it revealed offences of violence, dishonesty or relating to drugs. These categories of offence were relevant because it was alleged that Bradley had bitten the finger of the complainant and that this constituted assault. The defence case was that the complainant, who was under the influence of drugs at the time, had put Bradley into a headlock and that the only way he could get her to release him was to bite her finger. The defence knew that the complainant had already been convicted of assault and wanted to investigate whether the underlying facts showed a propensity to attack others in that way, particularly when under the influence of drugs. The police prosecutor, presumably on the basis that Bradley had identified a legitimate forensic purpose, produced a redacted criminal history of the complainant (limited to the particular categories of offences referred to above) in answer to a subpoena issued on behalf of Bradley. Bradley sought further material, including the police facts in relation to those offences. The police prosecutor refused to consider whether such material was disclosable and was therefore in breach of her duty of disclosure. In that case, I allowed an appeal against the refusal of a stay of proceedings and granted a stay pending discharge by the police prosecutor of her duty of disclosure.
In the present case, the plaintiff sought the entire criminal histories of each of the complainants. There was no attempt to tailor the subpoena to the issues in the case or any basis provided to show the relevance of such histories, if they existed, beyond the general assertion that they could be relevant to character and credibility.
It is also of some significance that the Commissioner has specifically addressed the criminal histories of the complainants in the context of the duty of disclosure and has written to the plaintiff's solicitors to confirm that he has done so and that there is nothing to disclose. While an accused person is entitled to issue a subpoena in circumstances where it is alleged that the prosecution has not complied with its duty of disclosure, the Commissioner's letter shows that the Commissioner considered the matter by reference to that duty (cf. Bradley).
Her Honour was referred to Chidgey and applied the test stated in that case to the present case. Although her Honour was concerned about the consequences for other cases of not setting aside the subpoena, I am not persuaded that her Honour's decision was other than on the basis of the application of the test.

Ground 4: alleged erroneous distinction of Jenkin by the magistrate

The plaintiff submitted that Jenkin ought to have been applied by the magistrate and that, had her Honour applied it, the subpoena would not have been set aside. Because of the importance of Jenkin to ground 4, it is necessary to examine what Jenkin decided in some detail.
In Jenkin, the accused, who was charged with murder, arranged for a subpoena to be issued to the Commissioner for the criminal histories of prosecution witnesses. The Commissioner sought to have the subpoena set aside on the basis that the legitimate forensic purpose had not been identified. Subsequently, the accused's representatives provided a schedule which identified the submission as to legitimate forensic purpose. Further documents were produced by the Commissioner to the court, including in relation to three of the witnesses who had already been called. In these circumstances, the Commissioner can be taken not to have pressed the application to have the subpoena set aside.
The Commissioner, having produced the documents to the court, resisted an order for general access on the ground that such an order would infringe the right to privacy of the witnesses. He proposed either that the accused's access to the documents be deferred pending cross-examination or that the documents be redacted to exclude those parts which did not relate to offences of dishonesty or offences of violence.
Hamill J addressed the legitimate forensic purpose of the criminal histories of prosecution witnesses (which was no longer in issue, having regard to the approach taken by the Commissioner) at [2] as follows: "The accused is charged with murder, conspiracy to murder and (in the alternative to conspiracy) solicit to murder. The case against him includes a large number of 'civilian' witnesses, many of whom are expected to give (or have given) controversial evidence about his treatment of the alleged victim of the murder offence. This evidence is relevant both to the murder charge itself and to a tendency and context case that the prosecution seeks to establish. Part of the accused's case is that a number of the witnesses assaulted the deceased and that these assaults caused injuries to the deceased. Some of the witnesses are known (by the accused, and presumably the police and the Crown) to have mental health, drug and alcohol issues. Without meaning to disparage the witnesses, it is clear that many live marginalised, difficult and chaotic lives on the fringe of society." [Emphasis added.]
In conclusion, his Honour said at [34]: "For those reasons, along with various matters that had emerged in evidence of the witnesses who had already been called, I formed the view that the accused was entitled to the criminal histories of (at least) those three witnesses who had already given (or commenced giving) evidence. He had a legitimate forensic purpose in issuing the subpoena. He was not on a 'fishing expedition'. It was 'on the cards' that the documents sought in the subpoena would materially assist him in his defence. Accordingly, it was appropriate that the records be produced. I did not accept the arguments made by the Commissioner in relation to access. There was no suggestion of any claim of privilege or public interest immunity. Accordingly, access was granted."
Although his Honour purported to decide that the accused had a legitimate forensic interest in the documents, the only issue that remained between the parties for determination was the issue of access. The only orders made by Hamill J were: "(1) Note that documents produced under subpoena. (2) Access granted to both parties."
Thus, all that Hamill J actually decided was that there was no such claim for privacy recognised by the law and that, access to the documents which had been accepted to be within an identified forensic purpose and which had been produced to the court in answer to a subpoena, was required to be given. In this context, Hamill J's review of the principles relating to subpoenas and to the prosecutor's duty of disclosure were purely obiter and do not appear to have been the subject of detailed argument. Nothing which his Honour said in Jenkin could reasonably be read as deviating from the "on the cards" test. Indeed, his Honour expressly referred to it.
Some of the statements made by Hamill J in Jenkin might appear to be inconsistent with the Court of Appeal's disapproval of Conolly. For example, his Honour said: "[19] The suggestion that an accused person is required to establish that they know, or have grounds to suspect, that a witness may have a criminal history is unrealistic and misconceived… [20] There is also a fundamental misconception in the implication that the accused is required to establish that the criminal history has some particular and direct relevance to the issue of credibility… [21] I agree with the observations of Gillard J in R v Mokbel (Ruling No 1) [2005] VSC 410 at [71]: 'It follows that any document or thing which impinges upon a witness's credibility is important to the accused's defence. Defence lawyers are in a far better position than a judge to make an appraisal of the value of information contained. There is a fine line between fishing for information and knowing or suspecting that there is information in the documents relevant to the credibility of a witness. A more liberal approach to the question is required in a criminal proceeding. Experience shows that full examination of documents by defence counsel sometimes produces relevant material for cross-examination, material which may to others not fully conversant with all the factual matters, be not important.' …"
His Honour also expressed qualified agreement with the following statement concerning the prosecutorial duty of disclosure from Ormiston JA's judgment in R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [63] (Charles JA agreeing): "Notwithstanding the absence of direct authority in this country relating to the obligation to disclose prior convictions, I would conclude, by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses, though the precise manner in which this duty should be worked out and applied may depend upon the court in which the prosecution has been brought, the means of obtaining that information and possibly other circumstances relevant to the individual case, as analysed below."
Hamill J said of this statement at [33]: "It is unnecessary to adopt the absolute terms of the statement of principle of Ormiston JA in R v Garofalo. However, I agree with it in general terms. A cautious prosecutor would act in accordance with its terms. Where a witness is expected to give evidence adverse to an accused person, or where their evidence is expected to be controversial, or where, as here, their conduct is impugned in relevant ways in other parts of the prosecution brief, the prosecution should disclose that witness's criminal history to the accused's legal advisers and do so at an early stage. Inherent in that proposition is the fact that investigating police should have disclosed the material to the prosecutor."
It is not necessary for present purposes to address the differences between the prosecutor's duty of disclosure considered in R v Garofalo and the documents which might be amenable to production on subpoena. However, it is important to recall that each of the statements made by Hamill J extracted above was made in the context of the proposal made by the Commissioner as to the limits on access which ought apply to the documents which the Commissioner had produced. Those limits were designed to restrict access to such documents until particular junctures had been reached in the cross-examination of witnesses whose criminal histories had been subpoenaed. The statements set out above, unless limited by their context, would appear to amount to a restatement of what Adams J said in Conolly, which for the reasons given above, is no longer good law in New South Wales.
While in R v Saleam, Hunt J held, at 18 in the passage extracted above, that the same principles applied to a grant of access as they did to an order for production (being the twofold requirement of identification of legitimate forensic purpose and the "on the cards" test), the Commissioner in Jenkin did not contend that no access to the documents ought be granted, but rather that the access ought be limited by time (according to the progress of the cross-examination) and party (for whom the cross-examiner appeared).
It is important to note that, immediately after the paragraphs extracted above, Hamill J made specific and detailed reference to the context in which the question of access arose in the trial which was continuing before him: "[21] The suggestion that the records could be produced to the Court but not disclosed to the defence until 'the groundwork was laid' and/or it 'became relevant' is, generally, unworkable in a criminal trial. The trial Judge (especially in a trial being conducted without a jury) cannot be placed in the position of making such determinations, which are, at their core, forensic choices. The Judge is not privy to all of the material in the prosecution and defence briefs. The Judge cannot predict, or influence, the course that counsel might choose to take in examining a witness. Equally, the forensic choices that counsel might take may be influenced by their knowledge of the criminal history of the witness they are examining. While Hunt J in R v Saleam acknowledged at [18D] that the forensic purpose may 'not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time', this is a different thing to suggesting that the trial Judge might determine the issue for themselves as the trial progresses."
I am not persuaded that what Hamill J said ought be read as an endorsement of Conolly, which, since Chidgey, is no longer good law. His Honour ought be taken to have been doing no more than emphasising the significance to the defence case of the documents which the Commissioner had already produced in answer to a subpoena which was no longer sought to be set aside. Further, although Hamill J referred, in Jenkin, to the "on the cards test", his Honour did not cite Chidgey and may not have been alerted in the course of argument either to its significance as authority which was binding on him or to its express disapproval of Conolly.
That the criminal histories of certain prosecution witnesses were accepted to be amenable to subpoena in Jenkin and Bradley does not mean that they are amenable to subpoena in every case. There were features of Jenkin and Bradley which persuaded the Commissioner in those cases not to make (in Bradley) or press (in Jenkin) an application to set aside a subpoena for the criminal histories. In the present case her Honour was not satisfied that there was any such feature here. I am not persuaded that ground 4 has been made out.

Costs

As neither party sought costs, it is not necessary to make any order as to costs.

Orders

I make the following orders: 1. Extend the time for filing the summons to 27 September 2019. 2. Grant leave to the plaintiff to appeal. 3. Dismiss the appeal.

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. Decision last updated: 07 April 2020

Criminal Procedure Act 1987(NSW)

Crimes (Appeal and Review) Act 2000(NSW)

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