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Category: Principal judgment

Parties: RS (applicant)
Commissioner of Police (NSW) (respondent)

Representation: Counsel:
Ms S Goodwin and Mr E Renard (applicant)
Mr D Jordan (respondent)
Solicitors:
Criminal Defence Lawyers Australia (applicant)
Crown Solicitor for New South Wales (respondent)

File Number(s): 2024/349249

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 September 2024, the applicant was charged with a series of offences under the Criminal Code Act 1995 (Cth) relating to child abuse material.

On 8 May 2026, the Commonwealth Director of Public Prosecutions (‘CDPP’), pursuant to disclosure obligations, provided the applicant with information and materials relating to charges against his son, RJ (a pseudonym), for alleged sexual offending towards his daughter. The applicant obtained leave of the District Court for the short service of a subpoena upon the respondent seeking production of materials related to those which were disclosed by the CDPP.

On 14 May 2026, the respondent filed a Notice of Motion to set aside the subpoena. On 22 May 2026, Ryan DCJ concluded that no legitimate forensic purpose existed for the applicant to obtain the material sought, and set aside the subpoena.

By Notice of Appeal filed 4 June 2026, the applicant (pursuant to section 5F(3) of the Criminal Appeal Act 1912 (NSW)) sought leave to appeal from the decision of Ryan DCJ, advancing a single ground of appeal: that her Honour “erred in finding that the subpoena did not have a legitimate forensic purpose”.

The Court (per Chen J, Mitchelmore JA and Sweeney J agreeing) held, granting the applicant leave to appeal, allowing the appeal and dismissing the respondent’s Notice of Motion:

1. There was no principled basis to have concluded that the material sought by the applicant, which possessed obvious evidentiary value and could well be vital to the “defence” the applicant seeks to pursue at trial, did not have a legitimate forensic purpose: [55].
2. Her Honour mischaracterised the legitimate forensic purpose advanced by the applicant as demonstrating that RJ had a “sexual interest in child abuse material” rather than a “sexual interest in children”, and thus “allow[ed] extraneous or irrelevant matters to guide or affect [her]” or “mis[took] the facts”: [40]-[44].
3. Her Honour erroneously failed to consider the similarities between the applicant’s alleged offending and RJ’s alleged offending, in particular, the sexual interest in young girls: [51]-[53].
4. Her Honour failed to consider the forensic significance of the CDPP’s disclosure, which should have been the starting point of any consideration of legitimate forensic purpose: [46]-[50].

JUDGMENT

1. MITCHELMORE JA: I agree with Chen J.

2. CHEN J: On 16 September 2024, RS (a pseudonym – ‘the applicant’) was served with a Future Court Attendance Notice charging him with a series of offences under the Criminal Code Act 1995 (Cth) (‘Criminal Code’) relating to child abuse material that was found on his mobile telephone. That device was examined by Australian Border Force officers at Sydney Airport upon his return from Thailand on 30 May 2024.

3. The applicant has entered a plea of not guilty to those charges.

4. On 8 May 2026, the Commonwealth Director of Public Prosecutions (‘CDPP’), in accordance with its disclosure obligations, provided to the applicant the details of the Court Attendance Notice, the Police Facts Sheet and a copy of a police interview in relation to alleged offending by his son, RJ (a pseudonym) – in short, sexual offending allegedly perpetrated by RJ upon his daughter. Having been served with this material, on 11 May 2026, the applicant obtained leave of the District Court permitting the short service of a subpoena upon the Commissioner of Police (‘the Commissioner’). The subpoena, which was returnable on 14 May 2026, sought production of the brief of evidence in proceedings brought against RJ (H… 6756) as well as any “COPS events” relating to those charges.

5. The Commissioner, by Notice of Motion dated 14 May 2026, moved to have that subpoena set aside on the sole ground that the applicant had “not demonstrated a legitimate forensic purpose”. That application was heard by her Honour Judge Ryan on 20 May 2026 and determined on 22 May 2026: her Honour concluded that no legitimate forensic purpose existed for the applicant to obtain the material sought and, given that conclusion, made an order setting aside the subpoena.

6. On 25 May 2026, the applicant foreshadowed to the District Court that he intended to appeal that decision. Consequently, on 26 May 2026, his trial, which was scheduled to commence on 28 May 2026, was vacated.

7. On 4 June 2026, the applicant filed a Notice of Appeal in this Court seeking leave to appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) (‘Criminal Appeal Act’), the decision to set aside the subpoena. His overall contention is that Ryan DCJ’s conclusion that there was no legitimate forensic purpose for seeking the material was the product of multiple errors.

8. It was common ground that a decision – or refusal – to set aside a subpoena is an “interlocutory… order given or made in the proceedings” within the meaning of s 5F(3): Sayer-Jones v The King [2024] NSWCCA 73 at [77] (‘Sayer-Jones’).

Background

9. Given the nature of the applicant’s challenge, it is necessary to address the background facts – which I will do across four parts: first, the charges against the applicant; secondly, the charges against RJ; thirdly, the procedural history relating to the issue of the subpoena to the Commissioner; and, fourthly, the application to set aside that subpoena and the judgment of Ryan DCJ.

10. The background facts are principally drawn from the judgment of Ryan DCJ. As the judgment has no medium neutral citation, the paragraphs within it will be referred to as J1, etc.

The charges against the applicant

11. The applicant has been charged with four offences, as follows:

12. that, between about 23 November 2023 and 1 December 2023, he utilised a carriage service to cause child abuse material to be transmitted to himself and to another user on an application (known as Telegram), contrary to s 474.22(1) of the Criminal Code (counts 1 and 2);

13. that, between about 31 January 2023 and 30 May 2024, he possessed or controlled child abuse material obtained using a carriage service, contrary to s 474.23(1) of the Criminal Code (count 3); and

14. that, between about 23 November 2023 and 30 May 2024, he used a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (count 4).

15. The material seized included 140 images and 67 videos which depicted young girls ranging in age from 3 to 17 years and which met the definition of “child abuse material” under s 473.1 of the Criminal Code.

The charges against RJ

13. On 2 September 2025, RJ was charged with three offences, as follows:

14. intentionally inciting a child under the age of 10 years to sexually touch him, contrary to s 66DA(b) of the Crimes Act 1900 (NSW) (‘Crimes Act’);

15. aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, contrary to s 66C(2) of the Crimes Act; and

16. aggravated sexual intercourse with a child, outside Australia, whilst in a position of trust, contrary to s 272.10(1) of the Criminal Code.

17. As noted, on 8 May 2026, the CDPP disclosed the Court Attendance Notice’s details, the Police Facts Sheet and a copy of the police interview with RJ for the above charges to the applicant’s legal representatives. Ryan DCJ accepted that this disclosure was made “in accordance with statutory and common law obligations”.

The procedural history relating to the issue of the subpoena upon the Commissioner

15. Following the CDPP’s disclosure of the material relating to RJ, on 11 May 2026, the applicant’s legal representatives sought – and were granted – leave to issue a subpoena upon the Commissioner of Police requiring the production of the brief of evidence in relation to the charges against RJ (paragraph 1) and any “COPS events” associated with those charges (paragraph 2). The return date for that subpoena was 14 May 2026.

16. Having been served with the subpoena, the Commissioner, through the Crown Solicitor, communicated with the applicant’s solicitor. It is unnecessary to address the full detail of the communications, but it is sufficient simply to note that the Commissioner expressed doubt about “the relevance of the subpoenaed material”, given there was “no apparent connexion” between the two sets of charges.

17. Being unpersuaded about the “relevance” of the material sought, the Commissioner, by Notice of Motion filed 14 May 2026, moved to have the subpoena set aside. The Commissioner’s argument was that the applicant had “not demonstrated a legitimate forensic purpose in relation to the subpoena”, advancing two overlapping arguments: the first was that the factual enquiry must be undertaken “in the context where [the applicant] has been provided with the [P]olice Facts Sheet in RJ’s case”; the second was that, given “the existence and details of the allegations have been disclosed, it can be seen that there is no connection between the alleged offending of [the applicant] and the alleged offending of RJ”.

The application and judgment setting aside the subpoena

18. The arguments of the parties before Ryan DCJ focused solely upon whether there was a legitimate forensic purpose in the applicant seeking the material the subject of the subpoena.

19. The applicant’s argument was that, given “the central issue at trial” will be whether it was the applicant and not some other person who “accessed, transmitted and possessed the child abuse material” which was found on his phone, a legitimate forensic purpose existed. That forensic purpose was in establishing that RJ “had a sexual interest in children”: since he worked with the applicant and therefore had an opportunity to access the applicant’s phone, that propensity to have a sexual interest in children “went directly to whether there was a reasonable possibility that it was he, rather than the [applicant], who was responsible for the child abuse material found on the phone”.

20. The Commissioner submitted, and Ryan DCJ at least implicitly accepted, that there appeared to be separate tests for whether a legitimate forensic purpose is demonstrated depending upon whether the proceedings are civil or criminal: in the former, the Commissioner argued that a test of “apparent relevance” applied (citing Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 at [65] (‘Blacktown City Council’)), whereas, in the criminal context, the test was, arguably, stricter – requiring a party issuing a subpoena to demonstrate both its forensic purpose and that it is “on the cards” that the documents will materially assist their case (citing R v Saleam [1999] NSWCCA 86 at [11] (‘Saleam’)).

21. As Ryan DCJ noted, the Commissioner argued that, irrespective of the underlying test for determining whether a legitimate forensic purpose existed, the applicant had failed to demonstrate that one did exist in relation to the material sought. In furtherance of that ultimate submission, the Commissioner argued that:

22. first, the applicant “had not established any legitimate forensic purpose for access to documents beyond those with which [he] had been provided”;

23. secondly, there was “no connection between the alleged offending of the [applicant] and that of [RJ], as their respective charges involved offending of a different nature”;

24. thirdly, in the investigation of RJ, “the police had not seized any electronic devices” and there was no suggestion that a “mobile phone or device” was involved in that offending, which was argued to negate the likelihood of there being any investigation into RJ’s use of electronic devices, including his own.

25. Her Honour proceeded to determine the question of whether the applicant had demonstrated a legitimate forensic purpose by identifying, what she accepted were, the two parts to the applicant’s “defence” – namely, “the access which [RJ] had to [the applicant’s] phone” and whether RJ “had an interest in child abuse material”. As I later explain, in relation to the second part of the applicant’s “defence”, her Honour fundamentally mischaracterised what the applicant had argued.

26. In relation to the issue of “access” to the applicant’s phone, Ryan DCJ found there was “no real basis to suppose that the brief of evidence or COPS entries… will contain further evidence relevant to the access which [RJ] might have had to [the applicant’s] phone”. Her Honour also found that “[i]t would appear” that RJ’s “electronic communications were not a focus of investigative interest”, which in turn diminished “the likelihood that the sought documents may assist in questioning prosecution witnesses as to whether [RJ] used [the applicant’s] electronic devices for the purposes of communication”.

27. In relation to the issue about whether RJ had “a sexual interest in abuse material”, Ryan DCJ did not accept that a legitimate forensic purpose existed, reasoning as follows:

“… I do not consider it to be ‘on the cards’ that the sought material will assist in establishing whether [RJ] had a sexual interest in child abuse material. There is no ‘apparent relevance’ in circumstances where [RJ] has been investigated and charged for offences of actual sexual intercourse with a real person, being his daughter. I accept the [Commissioner’s] submission that there are distinct differences in the nature of the offending respectively alleged against father and son. Seeking access to the brief of evidence and COPS entries from the investigation of the son in order to establish whether he may have had a sexual interest in child abuse material as opposed to a sexual interest in his daughter is an exercise in speculation, of the kind which has been ruled out in the relevant case authorities. This conclusion is strengthened by the fact that no electronic devices were seized from [RJ], further diminishing the force of any argument that the sought documents will assist in identifying an interest in child abuse material on the part of [RJ].”

25. As is apparent, Ryan DCJ accepted the Commissioner’s submissions, concluding that there was “not a rational or relevant connection between the sought material, and the case which the [applicant] seeks to make based on that material”, and that the applicant had failed to demonstrate “a legitimate forensic purpose in relation to the subpoena”. Accordingly, her Honour set aside the subpoena.

The appeal

The grounds of appeal

26. The applicant raised a single ground of appeal, the ultimate contention of which is that Ryan DCJ “erred in finding that the subpoena did not have a legitimate forensic purpose”. That error was argued to arise because her Honour made two subjacent errors:

27. first, “in finding that there was ‘not a rational or relevant connection’ between the material sought and the applicant’s case at trial” (ground 1(a)); and

28. secondly, in the “interpretation and application of the ‘on the cards test’” (ground 1(b)).

The requirement for leave

27. An analysis of the nature of this Court’s appellate jurisdiction “must commence with the fact that this Court has before it an appeal under s 5F from an interlocutory judgment or order”: D**AO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [53] (‘D**AO’). Notwithstanding there is no express statutory standard or criterion for an appeal within s 5F, the jurisdiction is not at large, as Spigelman CJ explained in D**AO at [55]:

“When enacting s 5F, the Parliament adopted terminology to which well established principles applied with respect to the degree of restraint that an appellate court should manifest. Relevantly, a high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. The basal authorities are Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The position is the same in criminal procedure…”

28. The matter was argued on the basis that a decision on whether to set aside a subpoena is a decision on a matter of procedure: Blacktown City Council at [6]; Sayer-Jones at [79]-[80].

29. Given the order made by Ryan DCJ is interlocutory and involves a matter of procedure, the well-known rules of restraint in interference are engaged when considering whether to grant leave. In Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 (‘Koschier’), Bell CJ summarised the various tests formulated, in the context of interlocutory decisions in criminal and civil proceedings, as follows (at [47]-[48]):

“Various tests have been formulated for the grant of leave to appeal in the context of an interlocutory decision in criminal proceedings. In DAO at [76], Allsop P spoke of the need for ‘demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice’ (emphasis added). The then President also added that ‘leave can be refused even if an error of principle has been disclosed’. Other judges have spoken of the need to show ‘an error of principle apt to cause irregularity or injustice’ (emphasis added): O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 at [48] quoting R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) (Mahoney JA, Gleeson CJ and Dunford J agreeing); Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25]; Rosamond v R [2022] NSWCCA 251 at [7].

In the context of leave to appeal from interlocutory decisions in civil proceedings, the Court of Appeal employs the test of whether there is ‘an injustice which is reasonably clear in the sense of going beyond [what is] merely arguable’, a question of public importance or a ‘question of principle’: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].”

30. The applicant argued that leave should be granted because of the nature and quality of the errors and, as a corollary, that substantial injustice would be occasioned if he was not permitted to pursue the documents sought (applicant’s submissions at [27] and [56]). Those submissions should be accepted and leave to appeal granted. It should also be granted because the nature of the errors and the decision itself, if not corrected, would have general consequences for the administration of justice.

31. Although, as discussed next, there may be a question about the appropriate standard of review, that question does not arise “unless and until leave to appeal has been granted”: Koschier at [45].

The standard of review

32. The applicant was content to argue the appeal on the basis that the decision was discretionary, thereby attracting the standard of review deriving from House v The King (1936) 55 CLR 499; [1936] HCA 40 (applicant’s submissions at [22], [27]). Appellate intervention in decisions of that kind can occur where the discretionary decision involved an error of principle or fact, or where, absent specific error, the decision was unreasonable or plainly unjust in the circumstances: House v The King at 504-505.

33. Notwithstanding the applicant’s approach, there remains a question about the appropriate standard of review: Sayer-Jones at [4]-[5]; Zakaria v The King [2026] NSWCCA 98 at [43]-[44] (‘Zakaria’). In the circumstances, however, it is unnecessary to address whether the correctness standard applies because, even applying the argued standard of deference, error has been demonstrated.

The application to adduce further evidence

34. The applicant read an affidavit from his solicitor, Ellyse Kwan, affirmed 4 June 2026 which, inter alia, attached a report from an expert who had qualifications in cyber security and digital forensics. The applicant argued that the report, which was adduced on appeal to establish the possibility that a third party may be responsible for the material appearing on the applicant’s phone, should be received pursuant to s 5F(4) of the Criminal Appeal Act.

35. The Commissioner opposed that affidavit being received, advancing elaborate submissions to the effect that, given the report was initially received on 15 May 2026 and an addendum was received on 20 May 2026, the Court should infer that the failure to tender the report was a considered forensic decision by the applicant. The Commissioner argued that, as the decision not to tender the report was a tactical one, this Court should refuse the applicant leave to rely upon it.

36. In the end, it is unnecessary to rule on whether this evidence should be received. That is for two reasons: first, because the evidence has confined materiality – the expert report principally relates to the question about “access” to the applicant’s phone (which is not the focus of the applicant’s appeal) and, as a corollary, does not directly relate to the findings that her Honour made about whether RJ had “a sexual interest in child abuse material” (see [24], above and [40]ff, below); and, secondly, irrespective of the evidence, I consider the decision below to be the result of error, such that the appeal must be allowed.

The grounds of appeal: the arguments

Introduction

37. The applicant argued that the material sought by him had a legitimate forensic purpose because it was capable of indicating that RJ had a sexual interest in young children, such that it may inform a sexual interest in child abuse material, and that the contrary conclusion reached by Ryan DCJ was the product of several errors: it involved her Honour “mistaking the facts”; misstating and misapplying the correct test – essentially, by overstating it; and, as an alternative, was unreasonable or plainly unjust.

38. The Commissioner sought to uphold the decision of Ryan DCJ, arguing that her Honour’s reasons for concluding that there was no legitimate forensic purpose and finding that seeking access to the material was “an exercise in speculation” were sound, and not the product of any House v The King error. The Commissioner also argued that, even if the correctness standard applied, the result would necessarily be the same.

Discussion and consideration

39. The applicant’s principal challenge relates to the conclusion at J37 – viz., her Honour’s finding that there was no legitimate forensic purpose in seeking the material in order to establish that RJ had “a sexual interest in child abuse material”.

40. It will be recalled that Ryan DCJ held that it was not “‘on the cards’ that the sought material will assist in establishing” that matter. Her Honour’s reasons for that finding, which were expressed in the language of the test identified in Blacktown City Council at [65], were that there was “no ‘apparent relevance’ in circumstances where [RJ] has been investigated and charged for offences of actual sexual intercourse with a real person, being his daughter”. In this respect, it is apparent that her Honour accepted the Commissioner’s submission that “there are distinct differences in the nature of the offending respectively alleged against [the applicant] and [RJ]”. It followed, Ryan DCJ reasoned, that it was an “exercise in speculation” to seek material “in order to establish whether [RJ] may have had a sexual interest in child abuse material as opposed to a sexual interest in his daughter”. Her Honour also considered that this conclusion was “strengthened by the fact that no electronic devices were seized from [RJ], further diminishing the force of any argument that the sought documents will assist in identifying an interest in child abuse material” on the part of RJ.

41. As noted, the applicant’s argument – below and in this Court – was that a legitimate forensic purpose was demonstrated because the material sought would assist in demonstrating that RJ had a sexual interest in young girls and a “motive for [RJ] to have been responsible for” the child abuse material on the applicant’s phone, given the opportunity he had to access it (applicant’s submissions at [38]).

42. Notwithstanding the applicant’s argued legitimate forensic purpose, Ryan DCJ approached the matter differently – by enquiring into whether the material sought by the applicant would assist in establishing whether RJ “had a sexual interest in child abuse material” or, as later expressed, whether seeking “access to [the material] from the investigation of [RJ] in order to establish whether he may have had a sexual interest in child abuse material as opposed to a sexual interest in his daughter is an exercise in speculation”.

43. The approach taken by her Honour fundamentally mischaracterised the applicant’s trial case and the argued legitimate forensic purpose for seeking the material. The applicant did not suggest that the material sought was to establish whether RJ “may have had a sexual interest in child abuse material”; rather, he argued that the material sought would assist in establishing whether RJ “had a sexual interest in children” (as Ryan DCJ had earlier noted at J19: see [20], above). This mischaracterisation was plainly material: when assessing legitimate forensic purpose, the task of establishing a sexual interest in children was appreciably less demanding than the one required for establishing a sexual interest in child abuse material.

44. In mischaracterising the identified legitimate forensic purpose advanced by the applicant, her Honour was clearly in error – in the language of House v The King, she “allow[ed] extraneous or irrelevant matters to guide or affect [her]” or “mis[took] the facts”.

45. The applicant also argued that Ryan DCJ’s “no legitimate forensic purpose” conclusion was erroneous in any event, emphasising that the subpoena was issued to secure the “full material” in circumstances where there was “a partial disclosure by the CDPP of documents and some evidence in the proceedings against RJ” (applicant’s submissions at [55]). In short, the argument was that these matters were overlooked by Ryan DCJ and resulted in the erroneous holding.

46. When considering whether a legitimate forensic purpose exists for material sought under subpoena, the procedural context – “the nature of the proceedings and any legislative guidance” – remains “important”: Blacktown City Council at [59], [76]-[79]. Relevantly here, that context includes not only that the CDPP disclosed the material, but that it did so in discharge of its statutory and common law obligations.

47. In R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [48] (‘Reardon’), this Court adopted the principles relating to the prosecution’s duty of disclosure, as stated in R v Keane [1994] 1 WLR 746, in the following terms:

“… the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v. Brown (Winston) [1998] AC 367 at 376-7, with the comment that “an issue in the case” must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.”

48. The CDPP’s Statement on Disclosure in Prosecutions Conducted by the Commonwealth (‘Statement on Disclosure’) aligns with those principles identified in Reardon. In disclosing the material to the applicant, the CDPP expressly referred to its disclosure obligations, including their own Statement on Disclosure.

49. Here, despite having earlier found that the CDPP disclosed the details of the Court Attendance Notice, Police Facts Sheet and police interview and that this disclosure was made “in accordance with statutory and common law obligations of disclosure” (J9), neither finding featured in her Honour’s consideration of the forensic purpose for the applicant issuing the subpoena upon the Commissioner, nor was there any discussion about the forensic significance of that disclosure by the CDPP. Contrary to the approach taken, these matters were the starting point of any consideration about legitimate forensic purpose in the present case.

50. The only inference, in my view, that can be drawn from the disclosure and the duty that led to it is that, “on a sensible appraisal” of this material by the prosecuting authority, it either ran counter to the prosecution case or might reasonably be expected to assist the applicant to advance a defence. On either footing, that was powerful evidence – from the prosecuting authority, no less – that a legitimate forensic purpose existed for the applicant seeking the documents sought in the subpoena.

51. The Commissioner submitted that notwithstanding the above, the “no legitimate forensic purpose” holding should be upheld because there were, as Ryan DCJ found, “distinct differences” in the nature of the offending. I am unable to accept this submission. The differences in the offending are relevant, but not dispositive. It is not otherwise because the “differences” are said to be “distinct” or because, to adopt the words of Ryan DCJ, the alleged offending by RJ involved “actual sexual intercourse with a real person, being his daughter”, whereas the alleged offending by the applicant involved the possession and transmission of child abuse material.

52. In the end, to focus simply upon whether there were “differences” is only part of the enquiry; the other equally relevant part is an assessment of whether there are similarities. Here, the applicant’s emphasis was upon at least one factual similarity that underlay the alleged offending in each case – namely, a sexual interest in young girls. Ryan DCJ did not consider this similarity at all – I would infer because, in mischaracterising the legitimate forensic purpose argued by the applicant and focusing only upon the differences between the alleged offending, her Honour’s approach resulted in this matter being overlooked.

53. Independently of the above, in my view, the factual premise of her Honour’s reasoning is erroneous: it rests upon the notion that a person who (allegedly) perpetrated a sexual assault upon a child (in this case, his daughter) could not reasonably or rationally be inferred to have, for the purposes of determining whether a legitimate forensic purpose existed, any other sexual interest in young girls. That finding, which was not based upon any evidence – merely an acceptance of a submission put by the Commissioner to that effect – is not only counter-intuitive, but heterodox in the area of circumstantial and tendency evidence (within Part 3.6 of the Evidence Act 1995 (NSW)), which is the broad area where the applicant seeks to deploy the evidence at trial.

54. For these reasons, I consider that her Honour was in error – in the language of House v The King, she “mis[took] the facts”. To be clear, I do not regard the “no legitimate forensic purpose” finding as being one that was reasonably open.

55. There was, as the applicant argued, no basis to set aside the subpoena on the ground that he had failed to demonstrate a legitimate forensic purpose for the material sought by it. This is so irrespective of whether the test is one of “apparent relevance” (Blacktown City Council at [65]) or legitimate forensic purpose coupled with the need to “establish that it is ‘on the cards’ that the documents will materially assist his case” (Saleam at [11]). The material sought had a clear forensic purpose: it possessed obvious evidentiary value and could well be vital to the “defence” the applicant seeks to pursue at trial (see [42], above). Given the prosecuting authority “on a sensible appraisal” formed the view that it was required to disclose the Court Attendance Notice’s contents, Police Facts Sheet and interview record, which could only be because their assessment was that this material was of the kind earlier described (see [51], above), there is no principled basis to not conclude that the material sought had a legitimate forensic purpose: Cornwell v R [2010] NSWCCA 59 at [298].

56. In relation to the above analysis, the following three matters warrant emphasis. First, “[t]here is a danger in using the language of ‘tests’ for the setting aside of subpoenas and such terminology should… be eschewed”: Blacktown City Council at [60]. That I have done so merely reflects the way in which the matter was argued below and in this Court – it is not an endorsement of the approach taken by the parties. I have, in any event, elsewhere explained why I consider the argued forensic purpose to exist. Secondly, in applying both “tests”, I have, again, adopted the approach of the parties, the need for which arises out of the uncertainty about the appropriate test to apply in the criminal context following the decision in Blacktown City Council: see Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 at [44]-[47]; Zakaria at [52]. And, thirdly, it has been remarked, albeit in civil proceedings, that when considering legitimate forensic purpose, the Court should not be “astute to find irrelevance” (particularly at an early stage of the proceedings), the enquiry should not be approached in an unduly restrictive manner and a party is “entitled to build up an evidentiary mosaic”: Lakatoi Universal Pty Limited v Walker [1998] NSWSC 470, 18. These remarks give useful and practical guidance to any determination about the legitimate forensic purpose of a party seeking documents in the present context.

Disposition

57. The applicant submitted that the Court should grant leave to appeal, allow the appeal, set aside the decision of Ryan DCJ and dismiss the Commissioner’s Notice of Motion filed 14 May 2026.

58. In my view, the Commissioner’s Notice of Motion should be dismissed: s 5F(5)(b) of the Criminal Appeal Act. I have previously set out the background, the competing arguments and my resolution of them, and they reflect my reasons for concluding that the applicant has demonstrated a legitimate forensic purpose for the material sought on subpoena. As the Commissioner did not raise any question about the subpoena being in any way oppressive, nor suggest any other circumstance that would stand in the way of the production and inspection of this material, it should be produced by 4 September 2026.

Orders

59. For the above reasons, I propose the following orders:

60. Grant leave to appeal.

61. Allow the appeal.

62. Set aside the order of Ryan DCJ made on 22 May 2026 and in lieu thereof:

(a) order the Notice of Motion filed 14 May 2026 by the Commissioner of Police be dismissed; (b) order the Commissioner of Police produce the material sought in the subpoena filed on 11 May 2026 by 4 September 2026, or at such further time as may be permitted by agreement of the parties or order of the District Court.

60. SWEENEY J: I agree with Chen J.

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