New South Wales Supreme Court CITATION : Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064 HEARING DATE(S) : 9 September 2010 JUDGMENT DATE : 20 September 2010 JUDGMENT OF : Hoeben J Leave to appeal granted from the decision of his Honour of 10 May 2010. DECISION : The appeal is allowed. The question of the production of and access to documents referred to in the subpoena relating to Susan Brock is remitted to the Local Court to be decided according to law. There is to be no order as to costs. CATCHWORDS : EVIDENCE - subpoenas - legitimate forensic purpose - application to set aside - whether subpoena which seeks documents relevant only to credit of Crown witness other than the informant is legitimate - where credit is an important issue - whether reasonable grounds to think that documents relevant to impugned credit will be found - APPEAL - interlocutory application before Local Court - leave to appeal necessary - clear error of law - limitations on role of Court hearing appeal. Crimes Act, 1900 LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Criminal Procedure Act 1986 CATEGORY : Principal judgment Aldred v European Hire Cars Pty Limited and Ors [1999] NSWSC 313 Alistair v The Queen (1984) 154 CLR 404 Attorney General for NSW v Dylan Chidgey [2008] NSWCA 65 CASES CITED : Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Carroll v Attorney General for New South Wales (1993) 70 A Crim R 162 Commissioner of Police v Hughes [2009] NSWCA 306 Liristis v Gadelrabb [2009] NSWSC 441 R v Saleam (1999) 16 NSWLR 14 Glen William Mackintosh - Plaintiff PARTIES : The Commissioner of Police (NSW) - First Defendant Constable Kelly Devine - Second Defendant His Honour Local Court Magistrate W Pierce - Third Defendant FILE NUMBER(S) : SC 2010/118210 COUNSEL : Ms C Loukas - Plaintiffs Mr B Williams - Defendants SOLICITORS : S O'Connor, Legal Aid New South Wales - Plaintiff IV Knight, Crown Solicitor - Defendants LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 598/10 LOWER COURT JUDICIAL OFFICER : Pierce LCM LOWER COURT DATE OF DECISION : 10 May 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Monday, 20 September 2010 2010/00118210 – Glen William MACKINTOSH v THE COMMISSIONER OF POLICE (NSW) & Ors JUDGMENT 1 HIS HONOUR: Nature of proceedings The plaintiff by summons seeks leave to appeal from a decision of the third defendant, his Honour Local Court Magistrate W Pierce, refusing access to certain documents sought by way of subpoena in respect of a prosecution witness, Susan Brock, in proceedings brought against him. The first and second defendants, The Commissioner of Police and Constable Devine, by way of notice of contention, seek to uphold the decision of the third defendant on grounds other than those relied upon by him in reaching his decision. 2 The application has been brought pursuant to s53(3)(b) of the Crimes (Appeal and Review) Act 2001 which relevantly provides: "53(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to any environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom: (a) An order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) An interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) That application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of Court." 3 It was common ground that the decision of the third defendant, being a decision in respect of a subpoena, should be treated as an interlocutory one. It was also agreed that an appeal is only permissible by leave and in circumstances where a question of law alone is identified. The first and second defendants submit that leave should not be granted, even if an error of law has been identified. The parties agreed that regardless of the outcome, there should be no order for costs. Factual background 4 The second defendant commenced criminal proceedings against the plaintiff arising out of incidents said to have taken place on 25 July 2009 at Leichhardt. The charges alleged that the plaintiff: (a) "Did intimidate Victoria Brock with the intention of causing the said Victoria Brock to feel physical or mental harm" contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007; (b) "Did intentionally or recklessly damage property, to wit, the front wooden door to residence 32/8 Whiting Street, the property of the Department of Housing" contrary to s 195(1)(a) of the Crimes Act , 1900; and (c) "Did assault Victoria Brock" contrary to s 61 of the Crimes Act 1900. 5 These charges were brought by way of Court Attendance Notice. In the course of those summary criminal proceedings, the plaintiff issued a subpoena to the first defendant requiring the production of the following documents: "1. The criminal antecedents of Victoria Brock DOB 13.8.80, CNI 690967955. 2. The criminal antecedents of Susan Brock DOB and CNI unknown but aged 27 as at 25 July 2009. 3. Any and all Apprehended Personal and/or Domestic Violence Orders where Victoria and/or Susan Brock were applicants or defendants named in such orders and/or named as Persons in Need of Protection in such orders; 4. The photographs of Glen Mackintosh taken by police at Newtown Police Station in early 2008 and recording and transcript of the ERISP conducted with Mackintosh on the same day. 5. All COPS records relating to Victoria and Susan Brock." 6 The first defendant filed a notice of motion to have the subpoena set aside in part (s 227 Criminal Procedure Act 1986). The order sought in the motion was: "1. That paragraphs 1, 2, 3 and 5 of the subpoena directed to the Commissioner of Police issued by the defendant and first returnable on 29 April 2010 be set aside." The grounds stated for that relief were that the subpoena lacked a legitimate forensic purpose and that it was an abuse of process. 7 The motion was heard by the third defendant at the Downing Centre on 10 May 2010. The basis for his Honour's decision is not altogether clear although the effect of the order is. His Honour ordered that paragraph 2 of the subpoena be set aside and that the references to Susan Brock in paragraphs 3 and 5 of the subpoena be set aside. In other words, his Honour required production of the documents relating to Victoria Brock but refused to order the production of documents relating to Susan Brock. 8 His Honour appears to have reached his decision on the basis that there was a rule of law preventing the production of material going only to the credit of a witness who was not an informant. His Honour based his decision on Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 and Aldred v European Hire Cars Pty Limited and Ors [1999] NSWSC 313. 9 As a result of the approach which he followed, his Honour did not consider or rule upon the alternative argument put forward by the first and second defendants that the "objected to" portions of the subpoena were objectionable on a more general basis in that they lacked a legitimate forensic purpose and constituted an abuse of process as amounting to a fishing expedition. It is for this reason that the first and second defendants filed their notice of contention. 10 Most of the transcript of what occurred on 10 May 2010 records exchanges between his Honour and counsel for the first and second defendants as they were examining the documents relating to Victoria Brock which had been produced. It was implicit in these exchanges that his Honour believed that the plaintiff had a legitimate forensic purpose in obtaining access to the documents relating to Susan Brock but that he was prevented by authority from allowing the plaintiff access to that material. Submissions and consideration 11 The plaintiff submitted (and it was not disputed by the first and second defendants) that when challenged by the person served with a subpoena, the party seeking production must state clearly and precisely the legitimate forensic purpose for which the subpoena was issued: Carroll v Attorney General for New South Wales (1993) 70 A Crim R 162. He submitted that it must be shown that it is "on the cards" that the documents will materially assist the applicant's case: Alistair v The Queen (1984) 154 CLR 404 at 414. The plaintiff submitted that these propositions represented trite law and had been applied in many cases: R v Saleam (1999) 16 NSWLR 14, Attorney General for NSW v Dylan Chidgey [2008] NSWCA 65 at [63]. 12 The plaintiff submitted that there was no rule of law or practice which limited the production of material or access by a party to material that is relevant because it may be used to impugn the credit of a Crown witness. The plaintiff submitted that there was nothing in Attorney General for New South Wales v Stuart or Aldred v European Hire Cars Pty Limited & Ors, the cases to which his Honour referred, which would support the proposition apparently relied upon by his Honour in refusing to allow production of the documents relating to Susan Brock. Put bluntly, the plaintiff submitted that his Honour was mistaken as to the law on this issue. 13 The plaintiff submitted that in view of his Honour's clear error of law, the matter should be referred back to the Local Court so that the question of the production of the documents, referred to in the subpoena as relating to Susan Brock, can be decided according to law. 14 The first and second defendants accepted that the appeal does raise a question of law. At least implicitly, they accepted that his Honour's decision not to require production of those documents relating to Susan Brock involved a misunderstanding of the decisions in Stuart and Aldred. Nevertheless, they submitted that leave to appeal should not be granted and that if leave is granted, his Honour's decision was correct in any event for the reasons which they set out in support of their notice of contention. 15 On the leave question they submitted that courts are usually loathe to permit satellite litigation of this kind. Reliance was placed on the remarks of Young JA in Commissioner of Police v Hughes [2009] NSWCA 306 at [35]. They submitted that this case was not an appropriate vehicle for determining any general point of law or practice and that there was no evidence that without the production of this material any subsequent trial of the plaintiff would be unfair. 16 I am of the opinion that leave should be granted. It is not in dispute that his Honour's decision not to require production of those documents relating to Susan Brock was based on a wrong understanding of the law. The rule of law upon which his Honour appeared to rely does not exist. The decisions of Stuart and Aldred do not support such a rule of law. It follows that when considering this question his Honour did not apply correct legal principle. 17 The law on this issue was succinctly and, with respect, accurately summarised by Brereton J in Liristis v Gadelrabb [2009] NSWSC 441 at [5] where his Honour said: "5. I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit." 18 Moreover, the error occurred in the course of criminal proceedings which potentially have serious consequences for the plaintiff. In circumstances where the plaintiff's defence is that Victoria and Susan Brock fabricated the evidence relied upon by the Crown, the plaintiff is entitled to have the question of the production of documents relating to Susan Brock decided according to law. 19 That does not end the matter. The first and second defendants submitted that the subpoena as it relates to Susan Brock was drawn too widely. They submitted that the criminal antecedents sought were not limited as to subject or time. They submitted that the paragraph seeking apprehended personal and domestic violence orders was very broad, seeking information whether Susan Brock was an applicant, a defendant or a person in deed of protection. Similarly, they submitted, the request for COPS records was unlimited by subject or time. They submitted that because of its width, it was hard to see how such a subpoena could meet any legitimate forensic purpose. 20 They further submitted that the terms of the subpoena itself suggest a fishing expedition in that there are no words of limitation used with respect to the material sought. There is no identification of the particular kind of criminal record or COPS record which is sought. The subpoena is indifferent to the role that Susan Brock may have played with respect to any apprehended violence order. They submitted that there was no evidence or appropriate suspicion in the material before his Honour that the documents relating to Susan Brock sought in the subpoena, would materially assist the plaintiff's case. The first and second defendants submitted that the bare assertion or speculation that there may be material which would assist the plaintiff is not sufficient to overcome the clear indicia in this case that insofar as Susan Brock is concerned, what was being attempted by the subpoena was a fishing expedition. 21 There is some force in the submissions of the first and second defendants, at least insofar as they relate to the COPS records and the apprehended violence records. It seems clear from the plaintiff's instructions (T.3.33) that the plaintiff has a legitimate forensic purpose in gaining access to any criminal record of Susan Brock and that there was sufficient material before the Court to indicate that it was on the cards that such a record existed. 22 On that issue, the analysis of Brereton J in Liristis is again of assistance. At [8] his Honour said: "8 So far as the second paragraph of the subpoena is concerned, however, in respect of his father Mr Tasos Liristis, there is no evidence before me on this application, nor any reason to suppose, that there would be any such documents in existence. I readily accept that documents that tended to show that Mr Tasos Liristis had been guilty of an offence of dishonesty would be the legitimate object of a subpoena, for the purposes of impugning his credit. I also accept that not much evidence would be required to show sufficient reason to justify a subpoena couched in relatively narrow terms for such documents. Even some basis for a suspicion – as slight as some instruction from a client that the client believed that the person in question had been prosecuted for such an offence – might suffice. But in this case there is absolutely nothing to suggest, nor any reason to suppose, that there are any such documents in existence so far as Mr Tasos Liristis is concerned." 23 While there is a clear basis for granting access to those COPS records relating to convictions of Susan Brock, there does not seem to have been anything before his Honour which would justify access being granted to COPS records relating to other matters or the apprehended violence material. 24 The problem for the first and second defendants, however, is that because of the conclusion which his Honour had reached in relation to the law, he did not address the correct question when considering the documents relating to Susan Brock. Specifically, he did not follow the two-step process which the cases prescribe. Had he done so, he may well have identified material in the documents produced in respect of Victoria Brock which provided a basis for the production by the first defendant of the Susan Brock documents, i.e. that it was on the cards that the documents sought in respect of Susan Brock would materially assist the plaintiff's case. There may have been other material before his Honour which is not specifically referred to in the transcript which would have produced a similar result. 25 It follows that I am not prepared to uphold the first and second defendants' notice of contention. This is because I am not satisfied that there was not material before his Honour which would have provided a basis for the production of the Susan Brock documents. By way of illustration, at T.48.39 - .50 there is a discussion between his Honour and the prosecutor which may indicate the existence of such material. 26 While it was necessary for the Court to consider in a general sense the wording of the subpoena and the transcript of the proceedings before his Honour in order to deal with the notice of contention, it is not appropriate in an appeal of this kind for the Court to embark upon a rehearing of the claim on its merits. This is particularly so when I do not have before me the material which was before his Honour. 27 In those circumstances the appropriate course for this Court is to allow the appeal and to remit to the Local Court the issue of the production of the Susan Brock documents to be decided according to law. 28 The orders which I make are as follows: (i) I grant the plaintiff leave to appeal from the decision of his Honour of 10 May 2010. (ii) The appeal is allowed. (iii) The question of the production of and access to documents referred to in the subpoena relating to Susan Brock is remitted to the Local Court to be decided according to law. (iv) There is to be no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.