Waters v Secretary of the Attorney-General’s Department (Cth) [2021] NSWCCA 193

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193 Hearing dates: 28 July 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Before: Macfarlan JA at [1] Davies J at [2] Beech-Jones J at [59] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIME – appeals – interlocutory appeals – subpoena – where primary judge set aside subpoena - where applicant extradited from Serbia to Australia in relation to drug importation – where applicant issued a subpoena to Attorney General's Department seeking documents, two categories of which the AGD's sought to have set aside – whether primary judge failed to apply "legitimate forensic purpose" test – where applicant asserted impropriety of Australian officials in material put forward to Serbian courts - where applicant had no evidence of impropriety but relied only on inferences – specialty and double criminality principle - whether a "fishing" expedition - where Serbian courts satisfied prerequisites for extradition demonstrated – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) ss 178A, 178BA Criminal Appeal Act 1912 (NSW) s 5F Criminal Code (Cth) ss11.2A. 11.5, 307.1, 307.5 Extradition Act 1988 (Cth) ss 10, 40, 42 Law on International Legal Assistance in Criminal Matters (Serbia) Articles 16,22 Cases Cited: A v Z [2007] NSWSC 899; (2007) 212 FLR 255 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Bangaru v R [2012] NSWCCA 204 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Mokbel v The Queen (2013) 40 VR 625; [2013] VSCA 118 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 Zirilli v The Queen [2021] VSCA 2 Texts Cited: Nil Category: Principal judgment Parties: Tristan Waters (Applicant) Secretary of the Attorney-General's Department of the Commonwealth (Respondent) Commonwealth Director of Public Prosecutions (Amicus) Representation: Counsel: K D Ginges (Applicant) T Glover & M Pruscino (Secretary of the Attorney-General's Department of the Commonwealth) M Varley (Commonwealth Director of Public Prosecutions)