STEVEN JOHN CARTER v RUTH HAYES SM AND THE STATE OF SOUTH AUSTRALIA No. SCGRG 93/1429 Judgment No. 4477 Number of pages - 7 Criminal law and procedure - jurisdiction, practice and procedure (1994) 61 SASR 451 (1994) 72 A Crim R 387 [1994] SASC 4477 (30 March 1994)

8. Emphasis was placed upon the appellant's lack of knowledge as to the contents or even the existence of the documents. A party's lack of knowledge of the existence or contents of the material sought is not of itself, however, a valid objection to a subpoena; National Employers' Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372 at p.382. Alister v The Queen [1984] HCA 85; (1983-84) 154 CLR 404 is an instance of a valid subpoena for the production of documents the existence of which was not known to the accused with any specificity. Hunt v Wark (1985) 40 SASR 489 is plainly distinguishable. In that case the documents were sought to be produced for the purpose of assisting a ground for the discretionary rejection of evidence based upon possible improper use of an agent provocateur. There was before the Court, however, no material capable of raising any serious issue of impropriety on the part of the police. There was no reason to suppose that the documents sought, even if they existed, would have any bearing on any issue capable of being raised by the evidence. The purpose was purely "fishing", that is to say to see whether anything might turn up in the documents which might provide a ground for the rejection of evidence. This case is quite different. The documents sought to be produced by the present subpoena must, by their nature, have a bearing on the issues in the case and may well have evidentiary value. To my mind the description "fishing" is not properly applied to such a subpoena.

16. Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial, Clarkson v DPP [1990] VicRp 65; (1990) VR 745 at p.755, and is an aspect of the prosecution's duty to ensure that the "Crown case is presented with fairness to the accused"; Richardson v R [1974] HCA 19; (1974) 131 CLR 116 at p.119, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. Moreover the Court has power to order the production to the defence of material in the prosecution's possession or power if the interests of justice so require; R v Clark 22 Cr App R 58, Mahadeo v R (1936) 2 All ER 813, R v Hall 43 Cr App Rep 29, R v Xinaris 43 Cr App R 30(N), R v Charlton [1972] VicRp 90; (1972) VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.

(1994) 61 SASR 451

(1986) 40 SASR 489

(1976) 1 NSWLR 651

(1978) 1 NSWLR 372

(1985) 40 SASR 489

(1974) 131 CLR 116

(1984) 154 CLR 563

(1992) 59 SASR 404