COLLIER v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER JA 8 June 1994 [1994] NSWCA 56 Sheller JA The Court has sat today on short notice to deal with the return of a subpoena directed to the Director of Public Prosecutions. When the matter was called on it was the understanding of the claimant, Mrs Collier, that the Director was seeking further time within which to answer the subpoena and that some further time for doing so had been granted by the Registrar. However, I was informed by Mr Kavanagh, who appears for the Director, that the problem was that the subpoena (which I have not seen) called for the production of a letter dated 8 June 1990 written by Mr BK Carsland. Mr Kavanagh informed me that no such letter had been found in the files of the Director but that a letter from Mr Carsland dated 26 May 1990 had been found. It was Mr Kavanagh's belief that this was the letter that was indeed being sought by the subpoena. The matter has proceeded on the basis that that was so. Mr Kavanagh informed me that the reason that further time for answering the subpoena had been sought was that he needed instructions from the Director as to whether or not the letter should be produced as answering the subpoena. He now has those instructions and that the letter will be produced to the Court. However, objection was taken by Mr Kavanagh to Mrs Collier's having access to the letter, principally on the grounds of relevance. Mr Kavanagh indicated that objection may also be taken on the ground of legal professional privilege and public interest immunity. It was suggested that I might resolve the question of access this afternoon. The affidavit of Mr Kavanagh sworn on 8 June 1994 was filed and read and the letter was produced to the Court in a sealed envelope. I have not examined it. In the light of the fact that I have little knowledge of the issues involved in this application, I indicated that I was reluctant to determine the matter this afternoon and understandably Mrs Collier (who is bound by a timetable fixed by the Court to file affidavits in support of her application on or before 20 June 1994) was anxious to have the document if it should be made available for inspection. However, in the circumstances, I have come to the conclusion that I should not now finally rule on the matter at such short notice. I have indicated to Mrs Collier that she should comply with the requirements of the timetable, as should the Director of Public Prosecutions. The matter is, I am told, in for further mention on 11 July 1994. By that time, there should be sufficient material before the Court for a decision to be made as to whether or not Mrs Collier should have access to the letter. Mrs Collier is concerned that if and when the letter is produced she may then desire an opportunity to furnish further evidence to the Court. She is fearful that her production of evidence could be inhibited by her inability to inspect this letter. 2 UNREPORTED JUDGMENTS I express no views about this. From what I have been told about the letter by Mr Kavanagh, I have doubts about its relevance to this application. It also seems to me that Mrs Collier ought to be able to put on whatever evidence she wishes in support of the application without recourse to such a document. However, I accept that if the letter is produced, it may be that she may have grounds to apply to lead further evidence. This application is not formally before me and I think it would be desirable in the circumstances if the Director of Public Prosecutions filed a notice of motion returnable on 11 July 1994 seeking an order that the document produced to the Court not be available for inspection by Mrs Collier. Any evidence additional to the affidavit of 8 June 1994 which has been filed in Court should be filed and served on or before Monday, 15 June 1994. I have in mind that the costs of today's hearing should be the costs of the application. I will stand over the question of costs to 11 July 1994.