Roads & Traffic Authority of NSW v Conolly & Anor

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT J Garbett LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Mr Alan Conolly was charged on 5 August 2002 with speeding in New South Head Road, Edgecliff on 18 March 2002. The particulars of the charge allege that an approved speed measuring device, recorded by an approved camera recording device, showed that Mr Conolly's vehicle was travelling at 78 kilometres an hour in a 60 kilometres an hour zone. In due course, Mr Conolly obtained a subpoena for production of documents under s100AJ of the Justices Act 1902. The subpoena was directed to the Roads & Traffic Authority of New South Wales (RTA) and required production of a number of documents in relation to the speed camera relied on as the basis of the charge. Objection was taken by the RTA to the subpoena, essentially on the grounds that it was a "fishing expedition" and an application was made to the magistrate to set the subpoena aside. The learned magistrate rejected this application, although he required certain amendments to be made to the subpoena having the effect of reducing its scope to some degree. In the result, the subpoena required production of the following - "1. In relation to the speed camera on New South Head Road, Edgecliff, between Waratah Street and New Beach Road, monitoring traffic flowing in an easterly direction, - (a) All records, documents, files concerning repair, maintenance, testing of the speed camera from 30 January 2002 to 30 June 2002.

(b) All records of any report of error, damage to, need for repair of, and malfunction of the said speed camera from 30 January 2002 to 30 June 2002 (c) Photographs of all vehicles taken by the said speed camera during the period 5.00pm to 5:21pm on 18 March 2002." 2 The RTA appeals to this Court under s104 of the Justices Act 1902, in the alternative seeking prerogative relief if that section does not apply to a party to a subpoena. It is submitted that the learned magistrate erred in law in not quashing the subpoena as a whole. 3 Before dealing with the particular arguments made by the parties, it is useful to set out some general principles. The conventional starting point for discussion of the principles governing subpoenas for the production of documents is the judgment of Gibbs CJ in Alister & Ors v The Queen [1983-1984] 154 CLR 404, commencing at 410. It is necessary to note at the outset that the context in which his Honour's discussion proceeds was a subpoena directed to the officer-in-charge of the Australian Security Intelligence Organisation (ASIO) requiring the production of "all files, notes and memoranda relating to or supplied by the investigation by Richard John Seary [a police agent and chief prosecution witness] into the Ananda Marga Organisation and activities from 15 June 1977 to date". The objection taken by the Commonwealth to the subpoena, which was accepted by the learned trial judge, was that to disclose whether or not documents of the specified description existed would be prejudicial to security, as would the production of any such documents, if they existed. It should also be noted that the applicants were unable to say whether any documents of the kind described in the subpoena existed nor, if they did exist, that they were likely to assist their case. As the Chief Justice observed (154 CLR at 414), it appeared that Seary joined Ananda Marga as an undercover agent of some government instrumentality or other to investigate matters likely to concern ASIO and it was not unreasonable to infer that he made reports to ASIO concerning Ananda Marga in general and the applicants in particular but there was no evidence to suggest that any such reports were favourable to the applicants' case; the likelihood was, indeed, that any reports would be adverse to them. The Chief Justice noted that high English authority supported the view that, before inspection of documents is ordered, it should appear that they are likely to support the case of the party seeking discovery rather than it being "enough" that they should appear likely to assist any of the parties to the proceedings, going on, however, to say (154 CLR at 414, omitting references) - "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. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done." [Emphasis added.]

The Chief Justice, accordingly, was of the view that, although the subpoena was cast too widely, the Court should inspect "all documents that relate to any investigation by Seary into the alleged crimes of which the applicants were convicted or into the activities of the applicants" (154 CLR at 416), even though it was "unlikely…that any report would assist the applicants" ( ibid at 415). Murphy J considered that "material capable of assisting an accused" should not be withheld: 154 CLR at 431. Brennan J said (154 CLR at 451, omitting some references) - "The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum : see Amey v Long (1808) 9 East 473 at 484-485; 103 ER 653 at 658. Lawrence CJ is there reported to have said during argument…that 'he could not reconcile it to his mind to suppose, that the innocence of a person accused might depend on the production of a certain document in the possession of another, who had no interest in withholding it, and yet that there should be no process in the country which could compel him to produce it in evidence'. Of course, the applicants did not know and do not know now whether ASIO have possession of any documents admissible in aid of the defence case. But the right to compulsory process cannot be dependent upon the parties' ability to prove the existence and content of a document when the party has reasonable grounds to believe that a document exists and seeks to obtain it by subpoena. That would eviscerate the right and limit its enforcement to occasions when the party already has in his possession secondary evidence of the original document the production of which the subpoena is intended to secure." [Emphasis added.] 4 Brennan J considered that the absence of any basis for supposing that ASIO had a document which assisted the defence demonstrated that - "…the subpoena to have been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the case. When the defence undertakes a fishing expedition, should the Court abstain from inspecting documents in the possession of the Crown for which public interest immunity has been claimed? In Air Canada v Secretary of State for Trade [1983] 2 AC 394, a case in which an objection to production was taken in proper form, it was accepted that the Court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce's criterion, there were 'some concrete ground for belief which takes the case beyond a mere 'fishing' expedition'…; some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery. Air Canada v Secretary of State for Trade was concerned with discovery in a civil action. This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case, it is appropriate to adopt a more liberal approach to the inspection of documents by the Court. The more liberal approach is required to ensure, so far as it lies within the Court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law…"

In the result, Brennan J considered that the documents should have been inspected by the trial judge to ascertain whether one or more of them supported the defence case that the charge against them was a fabrication and a frame-up and that, accordingly, he erred in law in "simply setting the subpoena aside without having regard to the contents of the documents sought" (154 CLR at 457). It is clear, therefore, that Brennan J considered that the mere fact that it was not known whether the documents in question might assist the defence was not a basis for striking out a subpoena seeking their production. 5 For many years it has been accepted in New South Wales that a party is entitled to production of documents on subpoena where there is a legitimate forensic purpose to be served by so doing. The relevant principles were discussed in R v Saleam (1989) 16 NSWLR 14 in the judgment of Hunt J (as he then was) with whom the other members of the Court of Criminal Appeal agreed. After making some general remarks, Hunt J noted that the subpoena in question "gave every appearance of a fishing expedition, in the sense that the appellant had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not" (16 NSWLR at 17). His Honour noted, however, that "it is appropriate to adopt a more liberal approach to such matters in a criminal case", citing Alister (supra) per Brennan J, 154 CLR at 455-456, noting also the opinion of Gibbs CJ that, although a mere fishing expedition could never be allowed, it might be enough if it appears to be "on the cards" that the documents would materially assist the accused. Hunt J pointed out that where a subpoena appears to require documents the existence and import of which is uncertain, counsel should be required "to identify expressly and with precision the legitimate forensic purpose" for which access to the documents is sought, and apply the criterion whether "it is 'on the cards' that the documents would materially assist the accused in his defence": 16 NSWLR at 18. 6 It has been submitted to me by the RTA that the defendant cannot know whether the documents sought assist him. They are sought for the purpose of showing, if it be the fact, that the speed camera was not working properly on occasions which make it reasonable to infer that it was not working properly when the defendant's car was photographed travelling at an excessive speed. It could not, it seems to me, be seriously suggested that seeking material that supported the defendant's contention that the camera was inaccurate was not a legitimate forensic purpose. However, it is submitted that the inability of the defendant to show, before the documents are produced and access is provided, that the documents in fact support his contention demonstrates that he is simply on a fishing expedition. I consider that the identification of the legitimate forensic purpose together with the reasonable chance that the documents in question might support the defence, is sufficient to justify a subpoena seeking the documents. It is not necessary for a party to show that it is more probable than not either that the particular defined documents exist or that they will assist his or her case. It is not disputed that the RTA is responsible for the maintenance and periodic testing of the camera and speed measurement devices in question. It is clear that, if the authority had evidence that a particular device or devices was malfunctioning, that information and information about the steps taken to rectify the malfunction would be material in determining their reliability on the occasion in question. Furthermore, the existence of material that disclosed a reasonable chance that the device might have malfunctioned should be disclosed at all events to the defence, whether or not it was subpoenaed. The existence of such a duty of disclosure does not demonstrate that a subpoena seeking the documents should be quashed; if anything, it supports the propriety of such a subpoena. The defendant asserted that it was reasonable to infer the existence of such documents and the likelihood that they would support his case having regard to his experience (as he asserted) that on the relevant occasion he was travelling only at 40 kilometres an hour. No doubt he could have given evidence of this matter for the purpose of determining the objection to the subpoena and thus provide an evidentiary basis for the asserted legitimate forensic purpose but no point is taken on this ground, it being accepted that the matter was dealt with by both parties on the basis that the defendant's case was indeed that he was only travelling at 40 kilometres an hour at the relevant time. 7 It should be noted that, merely because the outcome of the subpoena may not be known, does not mean that it is therefore an attempt to obtain discovery. Discovery is, in substance, the obligation of a party in civil proceedings to disclose all documents that are relevant to the issues to be determined, subject to particular privileges. Of course, a subpoena may be expressed in terms wide enough to constitute an attempt to obtain a discovery and, where discovery is not available such as in a criminal trial, will be either struck out or amended to confine its command to appropriate limits: Commissioner of Railways v Small (1938) 38 SR 564 and a recent example, New South Wales Commissioner of Police v Tuxford & Ors [2002] NSWCA 139. However, the obligation on the party calling on a subpoena to produce documents is "to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought" (Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ (as he then was) at 504). Where that is done, I do not think that it is necessary that the party needs to demonstrate more than that there is a reasonable chance that the documents in question will serve the purpose so specified. In Tuxford, Brownie AJA (with whom the other members of the Court agreed) pointed out (at [27]) that a fishing expedition is one in which a party is "endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant". If I may respectfully say so, this observation is as important as it is correct. A suspicion or belief of a party, stated from the bar table, that the documents called for would assist that party's case where there was nothing in the pleadings or the evidence supporting such a statement is not a sufficient identification of the forensic purpose: "practically speaking, the opponents left it to us [the Court] to work out for ourselves what the documents called for might show" (Brownie AJA at [28]) and accordingly, no proper basis for access was demonstrated. 8 In Regina v N (unreported, NSWCCA, 21 July 1998, the appeal concerned whether leave should be granted to appeal from a decision of a District Court judge to decline to decide whether or not access should be granted to material produced on subpoenas directed to a hospital and a high school to produce notes of counselling communications between an alleged victim of sexual assaults and the applicant who was on trial for these offences. Although the documents in question were produced, it was of course not known by the applicant whether anything in them might assist his defence. Even so, the Chief Justice noted that "material of the character which is contained or probably contained within the documents to which access is sought is likely to be of significance, either directly or suggesting a course of enquiry with respect to…cross-examination [of the complainant]". It was not suggested that ignorance about whether, in the result, some assistance might be obtained by the applicant should be a reason for refusing access. The significance of the documents was obvious and the legitimate forensic purpose for which they were sought was also obvious. 9 The RTA, in addition to relying on the general statements of principle to which I have adverted, also relied upon two decisions of the Supreme Court of Victoria. In Glare & Ors v Bolster & Ors (1993) 18 MVR 53, Beach J considered whether a magistrate who refused to set aside three summonses had erred in doing so. The defendant had been charged with driving his motor vehicle at a speed of 101 kilometres an hour in a 60 kilometres per hour zone. His speed had been detected and recorded by a speed camera system operated by a police officer. This was a prescribed detection device producing a measurement of speed that, under the relevant legislation (as here) was evidence of the speed of the motor vehicle on the relevant occasion. The legislation provided for the testing of such devices, sealing and usage. The defendant sought by summons the production of the technical journals and similar documents and logs, kept with respect to defective operation, repair or maintenance of the device used in the case, documents concerning its testing and all statements made by any person concerning the device or in respect of the proceedings, copies of licences relating to the use of the device and the device itself. Beach J quashed the summonses. His Honour did so first, for the reason that there was nothing in the material before the court that enabled it to be inferred that it was "on the cards" that the production of the documents in question in the speed camera would materially assist the defence. His Honour considered that the primary purposes for production of the documents and the camera was to enable them to be used for the cross-examination of prosecution witnesses and to have them available for inspection by experts who might or might not be called to give evidence on behalf of the defence. For the reasons which I have already given, it seems to me that testing the evidence of prosecution witnesses and the reliability of the device were both legitimate forensic purposes and, subject to the need for refinement, having regard to the width of the documents sought, the subpoena was proper. Beach J also considered that "the much broader ground for quashing the summonses…is that they are simply being used as part of fishing expedition and with a view to obtaining discovery in a criminal proceeding". His Honour quoted the letter of request specifying the documents sought that referred to "discovery of the following documents and objects". With the greatest respect, however, it seems to me that the crucial question is not the language of the request but the actual character of the demand: see, for example, the use of "discovery" by Gibbs CJ, Wilson and Dawson JJ and Brennan J in Alister v The Queen (154 CLR at 414, 438 and 456); cf Saleam 16 NSWLR per Hunt J at 19. On the other hand, if I may respectfully say so, the generality of the language used in the summons certainly came close to seeking discovery as to the reliability of the device. I simply point out that, in the circumstances, Beach J did not regard it as necessary to undertake an analysis of this kind. Beach J also thought it material that the legislative status of the relevant certificate, in effect that it was rebuttably presumptive of the speed of the vehicle, justified the inference that the legislature considered that devices such as that used in that case were reliable and concluded that it was not possible for a defendant to attempt to challenge the reliability of such a device but rather representations should be made to the legislature to withdraw its approval. With the greatest respect I find this argument most unattractive. It seems to me obvious that a defendant in proceedings of the kind under consideration must be able to establish that the device relied upon by the prosecution is either defective or likely to be defective or for some other reason ought not to be trusted as reliable. Any evidence which is relevant to that issue is admissible and a summons that is designed to obtain documents concerning the device which are reasonably capable of disclosing, if such be the case, that the device is unreliable or ineffective is, on the face of it, proper. Nor do I consider that it is an answer to an otherwise legitimate demand for production that the State or one of its instrumentalities has a duty to produce material that might demonstrate the device's unreliability. I am therefore unable, with the greatest respect, to accept that "it is…wholly immaterial to mount a challenge to the general reliability of these approved devices in individual prosecutions brought under the [traffic legislation]". If the approved devices are generally unreliable, that would seem to me to be relevant in considering whether or not, in the particular case, it could be relied on, depending, of course, on the other factual issues in the case. 10 In Gaffee v Johnson (1997) 90 A Crim R 157, Smith J upheld an order of a magistrate requiring the prosecution to provide documentation explaining, detailing or describing any modification to a radar device used by the Victorian Police except to the extent that those modifications had been disclosed in an affidavit that had already been filed. The purpose for seeking the document was to obtain information about modifications that had been made to the radar devices used by the police to ascertain whether the prescribed testing procedures had been followed and to permit expert opinion evidence to be called about the accuracy of the instrument. This order was made because the magistrate felt bound to accept the somewhat technical objection raised by the prosecution to the procedure adopted by the defendant to obtain the specified documents, which was by a notice to produce in accordance with the procedure in civil procedures rather than by summons. The prosecution sought prerogative relief from the magistrate's order upon the ground that there was no jurisdiction for him to make it and relied on Glare v Bolster (supra), in particular the remarks of Beach J concerning the legislative approval of the reliability of the photographic detection devices. Smith J considered those remarks were dicta and made as a parting observation in the reasons for judgment, with which opinion I respectfully agree. Smith J noted that the principal ground relied on by Beach J went to the merits of the application, which was not under challenge in the case before him. Smith J said that, as the legislation "envisaged that it will be open to a defendant to challenge the accuracy of the result recorded and one way in which this can be done is to lead evidence about the margin of error in any equipment or by pointing out some deficiency in the evidence which may have been overlooked by the authorities in prescribing it" he was not persuaded that Beach J's dicta assisted him. Dealing with the issue before him, Smith J found that the magistrate had either an inherent power or an implied power to order production of the documents sought, adding, in relation to the power to give a direction to an informant to supply documents, the following observations (at 90 A Crim R 165) - "Ultimately, we are concerned with the due administration of justice in the criminal justice system. In prosecutions of the kind considered below, the legislature has given the prosecution significant assistance in proving its case and, as a result, a substantial forensic advantage. In the vast majority of cases the defendant will not contest the result of the radar test. In those cases where a defendant wishes to contest the result, however, it would in my view be contrary to the interests of justice for the prosecuting authority to withhold relevant documentary information concerning relevant aspects of the radar device, its testing, sealing and its use if that is sought by the accused. If it reveals nothing to detract from the evidence of the device's reading, no harm is done from the prosecution's point of view. If it reveals facts which do so detract, then the accused is entitled to know. To permit withholding of such information would be to allow a situation to exist where, in most cases, the prima facie proof intended by Parliament would become conclusive. That was not Parliament's intention and the court should not permit such a situation to exist without the plainest statutory direction." 11 I respectfully agree with Smith J's remarks. Although his Honour was dealing with an order made in exercise of what appears to be a power to order discovery, the order was specific. It does not seem to me that there is real distinction, except in form, between an order made pursuant to the implied or inherent power to which Smith J referred and an order which takes the form of a subpoena. 12 A somewhat similar approach to that of Beach J was adopted by Balmford J in Fitzgerald v Magistrates' Court of Victoria and Others [2000] VSC 348; 34 MVR 448 where an application by a defendant seeking production of documents relating to breath testing devices was rejected by the magistrate and confirmed on appeal. Her Honour referred to Alister and Saleam, quoting the second edition of the Oxford English Dictionary which defined "on the cards" as meaning "within the range of probability": 34 MVR at [20]. Accepting this to be so, it 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. Balmford J accepted the principles set out in Gaffee v Johnson (supra) but considered that the issue before her, like that in Glare v Bolster (supra) turned on the merits of an application for a witness summons, and not to the power of the Magistrates Court to give pre-trial discovery. Balmford J cited Alister, Saleam and Glare v Bolster without elaboration, although her Honour accepted that the principles there stated applied. Her Honour then went on to observe that the matter before her should be considered in light of the well-known principles governing appeals against discretionary judgments, in particular, (as I understand her Honour's reasons) that the moving party must show that a substantial injustice will be suffered if the order below is allowed to stand. Balmford J noted that the plaintiff "produced no material which could form the basis of a submission that it was within the range of probability that the denied documents which assist the plaintiff in his defence of the charges" (34 MVR at [50]). Accordingly, holding that "a mere statement by a party that the instrument must be defective does not give rise to such a probability, there was no basis to rebut the presumption as to the correctness of the magistrate's exercise of his discretion." In this case, however, it has been agreed that the matter was argued before the learned magistrate upon the basis that it was indeed proposed to lead evidence that the device had incorrectly recorded the defendant's speed. However, at all events, I must respectfully state my disagreement with Balmford J's judgment. If, as I respectfully think is the case, her Honour considered that the party seeking production must show to a degree of probability higher than that of a reasonable chance that he or she would be assisted by the information sought, that is the wrong test, for the reasons I have already given. The mode by which a legitimate forensic purpose is established will no doubt vary according to the character of the questions to be decided, but it seems to me that there is every reason for accepting statements by the legal representatives of the parties as to the issues in the case. This is especially so in criminal cases where the onus of proof is on the prosecution, an onus which, I hasten to add, is not reversed in cases such as the present by the provision which assists the prosecution to prove a technical but vital aspect of its case by way of a certificate. At all events, where such a point is to be taken, opportunities should be given to the party to call evidence on the question to provide a proper basis for the submission that, in fact, a matter is in issue. In this respect, however, it should be noted that a plea of guilty places all matters of fact in issue. With respect, therefore, I consider that neither Glare v Bolster nor Fitzgerald v Magistrates' Court of Victoria should be followed. 13 Accordingly, the summons must be dismissed with costs. **********

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