R v Wilkie [2008] NSWSC 885

New South Wales Supreme Court

CITATION : R v Wilkie [2008] NSWSC 885

HEARING DATE(S) : 25 August 2008

JUDGMENT DATE : 25 August 2008

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

EX TEMPORE JUDGMENT DATE : 25 August 2008

DECISION : Objection to subpoena upheld

CATCHWORDS : SUBPOENA - Objection by recipient Crown - "Fishing" by accused due to face trial

CATEGORY : Procedural and other rulings

Esso Resources v Commissioner of Taxation (1999-2000) 201 CLR 49 CASES CITED : Mann v Carnell (1999-2000) 201 CLR 1 R v Petroulis (No 22) [2007] NSWSC 692 Wollongong City Council v Ensile Pty Limited [2008] NSWLEC 250

PARTIES : REGINA - Crown Daniel WILKIE - Accused

FILE NUMBER(S) : SC 2007/2619

COUNSEL : A MacSporran SC; M Wigney SC; T Berberian - Crown L Robberds QC; M Thangaraj - Accused

SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Speed & Stracey - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

MICHAEL GROVE J

Monday 25 August 2008

1623/07 REGINA (COMMONWEALTH) v Daniel WILKIE

JUDGMENT – (On objection to subpoena)

1 HIS HONOUR: The accused has issued a subpoena to the Commonwealth Director of Public Prosecutions seeking production, essentially, of notes of conference held between prosecuting counsel and an intended witness named Spratt. The Director objects to producing that documentation subject to the qualification that I will later mention. 2 It appears that the accused has possession in the ordinary course of statements by this witness which were made I am informed on 4 April 2005, 11 March 2007 and 21 August 2008 respectively. For present purposes it can be accepted that there are observable inconsistencies in the content of the documents, at least in the sense that disclosures therein of conversations, the content of those conversations, and the order in which they occurred were altered from time to time. These conversations were said to have been had by the witness with various employees of FAIG. Senior counsel for the accused asserts that there is a legitimate forensic purpose in having access to these notes in order to be informed as to how these changes came about. 3 I should however first note an argument that the effect of s 123 of the Evidence Act 1995, particularly in the context of rule changes following the decisions of the High Court in Esso Resources v Commissioner of Taxation (1999-2000) 201 CLR 49 and Mann v Carnell (1999-2000) 201 CLR 1, should be interpreted so that effectively there has been an abolition of the right of a prosecutor to claim privilege against disclosure of material of the nature which I have mentioned. In my view the statute in s 123, whilst it does not prevent an accused from adducing evidence about matters which would be the subject of privilege in the hands of a prosecutor, it is to be observed that it says nothing in its terms about enforced production of such material. A wholesale change in such a fundamental legal concept of privilege would in my view require much clearer statutory expression than appears in s 123. 4 My attention was drawn to the decision in R v Petroulias (No 22) [2007] NSWSC 692 where the proposition was not advanced in the terms that it is now brought forward. I consider that the Crown's submission is correct, that the effect of the section is to enable an accused to use what would otherwise be privileged information if he has possession of it, but it does not in its own terms provide a vehicle for enforced production of such material. To the extent that a different view might be deduced from the decision in Wollongong City Council v Ensile Pty Ltd [2008] NSWLEC 250 I would not concur. 5 It is not however necessary for me to be finally conclusive about my views. So far as the present contest is concerned, it is common ground that it is necessary for the accused to demonstrate a legitimate forensic purpose and I have already referred to the basis upon which it is asserted by the accused. The evidence in the affidavit of Fiona Gayler of 25 August 2008 shows that the notes of the conference of 11 March 2007 and 21 August 2008, which are in effect the matters in focus at present, have been supplied by the prosecutor pursuant to the Director's policy on disclosure. That policy in effect essentially offers a waiver of some matters which would otherwise be privileged. 6 Finally, it is the complaint of the accused that what has been supplied has been, as described, redacted, and the supply is therefore limited to what the Director asserts is relevant to the subject matter of the subpoena. Thus it is argued that the accused should not have to accept what amounts to the prosecutor's decision concerning the issue of relevance. Using an expression frequently used in this area of the law, it is submitted that it is on the cards that there would be relevant material in the notes of the conference. This would necessarily be an assertion that there is something additional to that which has in fact been disclosed. 7 In my view there is no demonstration that material so speculated to be on the cards will be found, and indeed the very terms of the submission show in my view that, to use another common expression in this area, what the accused is doing is fishing. That does not constitute a legitimate forensic purpose. In those circumstances I uphold the objection. **********