Children's Court New South Wales Medium Neutral Citation: Police v DH [2014] NSWChC 3 Hearing dates: 29 May 2014 at Nowra ChCt Decision date: 05 June 2014 Jurisdiction: Criminal Before: Children's Magistrate Graham Blewitt AM Decision: Application to set aside the subpoena is dismissed Catchwords: CRIMINAL LAW - Young Persons - Subpoenas - Legitimate forensic purpose - use in cross-examination to attack credibility - use in cross-examination to show tendency to act unlawfully - subpoena too wide Legislation Cited: Police Act 1990, section 70 Evidence Act 1995, section 97 Cases Cited: Liristis v Gadelrabb [2009] NSWSC 44 Fried v National Australia Bank (2000) 175 ALR 194 Attorney General for NSW v Dylan Chidgey [2008] NSWCCA 65 Alistair v The Queen (1984) 154 CLR 404 Waind v Hill and National Employer's Mutual General Association Ltd [1978] 1NSWLR 372 R v Saleam (1999) 16 NSWLR 14 Category: Interlocutory applications Parties: Police Young Person Representation: Mr Chrysostomou, instructed by the Crown Solicitor's Office for the applicant Mr Boland, instructed by Mr A Robinson for the accused young person File Number(s): 2014/16623 Publication restriction: None Judgment Brief Background 1Around 9pm on Christmas Eve, 2013, the accused young person, aged 17, was with a male companion in a parked car at a park located beside the Shoalhaven River at North Nowra. It was dark and they were the only persons in the car park. 2Police (Sgt D and S/C B) were patrolling the area and had decided to carry out a check of the park due to prior intelligence involving illicit drug use in the park. 3The police saw the parked car and decided to investigate. I do not propose to go into detail about the events that followed, as this may become the subject of subsequent proceedings. For present purposes, it is sufficient to record that the accused young person and her companion were not involved in any wrongdoing in the vehicle. Words were exchanged between the police and the occupants of the vehicle, and this resulted in both the young person and her companion being searched and arrested. Nothing of an illegal nature was detected during the search of the persons or the vehicle. Both were taken back to the police station, and the young person was charged with the three charges currently before the Court, namely, assault police, hinder police and resist police. 4These charges attracted a plea of not guilty and are listed for hearing before the Nowra Children's Court in July 2014. The subpoena 5Mr Robinson, solicitor for the young person, has issued a subpoena requiring the NSW Police to produce, inter alia: "(h) all complaints made whether in writing or in any other way (telephone, personal attendance etc) which have been noted or recorded in any document, together with any annexures for such complaints, in relation to Sgt [D] and / or S/C [B] to the Superintendent, Shoalhaven Area Command, for the Commissioner or any other member of the NSW Police Force in the period 1 January 2012 to 1 March 2014". Application to set subpoena aside 6The Crown Solicitor's Office, acting on behalf of the Commissioner of Police, has filed an application to set aside this paragraph of the subpoena. The basis of the application was two fold and is contained in a letter from the Crown Solicitor's Office dated 7 May 2014, which states "[the Commissioner] objects to paragraph (h) of the subpoena on the grounds that it lacks a legitimate forensic purpose and pursuant to s 170 of the Police Act...." 7The application to set aside paragraph (h) was contested and was listed for hearing at the Nowra Children's Court on 29 May 2014. Mr Chrysostomou was briefed to appear on behalf of the Crown Solicitor's Office and Mr Boland was briefed by Mr Robinson to appear on behalf of the accused young person. 8Prior to the hearing the parties held discussions with the aim of resolving the issues pertaining to the subpoena. These were not successful, but Mr Chrysostomou informed the Court that if the scope of the subpoena was narrowed to seek production of material concerning the two named officers limited to sustained complaints of dishonesty or use of excessive force, then the objection to the subpoena would not be maintained. 9Mr Boland indicated that the defence were not willing to accept this offer, as they were in possession of information that would suggest the existence of material that would be relevant and would fall outside such a narrowing of the subpoena. 10The hearing of the application to set aside the subpoena then proceeded with both parties making submissions, including written submissions by Mr Boland. Claim for privilege - section 170 of the Police Act 11It is convenient to deal with the second of the grounds contained in the Crown Solicitor's letter, namely that the documents sought to be produced under the subpoena were privileged in accordance with s 170 of the Police Act. Mr Boland submitted in his written submissions that the section has no application to the material sought under the subject subpoena, because what was sought in the subpoena was "all complaints made....", a class of documents specifically excluded by s 170(2)(a). 12Section 170 provides: (with emphasis added) 170 Certain documents privileged (1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings: (a) that concern the conduct of police officers, and (b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action. (2) Subsection (1) does not apply to or in respect of: (a) a document comprising a complaint, or (b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or (c) a document that a witness is willing to produce. (3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted. 13Mr Chrysostomou did not challenge this submission. 14In respect of this ground, I am satisfied that having regard to the precise terms of the subpoena, in seeking the production of "all complaints made whether in writing or in any other way", that the privilege provided by s 170 has no application to the "complaints" material covered by the subpoena. Legitimate forensic purpose 15This leaves the remaining ground relied on by the Crown Solicitor, namely that there is a lack of a legitimate forensic purpose in seeking the material, that is, that the subpoena is a mere fishing expedition. 16In relation to the legitimate forensic purpose relied up on behalf of the accused young person, Mr Boland submits that in respect to the current proceedings, there are two such purposes, and he set these out in his written submissions as follows: "In broad terms, inspection of the complaint material is submitted to be necessary for the [young person] to give proper consideration to: (a)The "credit" of the prosecution witnesses making the criminal accusations against her. (b)The "tendency" of prosecution witnesses, together or individually, to engage in acts of unlawful or otherwise improper violence while purportedly in the execution of their duty." Credit of witnesses 17In relation to the question of reliance on subpoena material to attack the credit of prosecution witnesses, Mr Chrysostomou submitted that the scope of the subpoena was too wide, and relied on the decision of Liristis v Gadelrabb [2009] NSWSC 441. In that case Brereton J said, in paragraph 5: "...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. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of "trawling" in this context is the same as that of "fishing". It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena". 18Mr Chrysostomou submitted that the terms of the subpoena in the subject proceedings are too wide, that they amount to a fishing expedition, by using the words "all complaints". He submitted that it would be more appropriate if the subpoena was limited to "all sustained complaints relating to the use of excessive force". He submitted, as I understand his submissions, that having regard to the amount of police activity in carrying out their duties generally on a daily basis, it is not "on the cards" that a subpoena framed in the terms of the subject subpoena would capture only material relevant to the forensic purpose relied upon by the accused young person, and accordingly the subpoena, as framed, is too wide and amounts to a fishing expedition in respect of other matters. Tendency evidence 19In relation to the second forensic purpose identified by Mr Boland in his submissions, that is "the tendency of prosecution witnesses, together or individually, to engage in acts of unlawful or otherwise improper violence while purportedly in the execution of their duty", Mr Chrysostomou submits that in seeking to rely on tendency evidence, it is necessary for the accused young person to establish the threshold question of probity, having regard to the provisions of s 97(1)(b) of the Evidence Act. 20The relevant parts of that section provides: Section 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 21Finally Mr Chrysostomou submitted that if the defence is aware of specific instances, then the subpoena should be narrowed to include such specific instances, and in relation to the fishing metaphor, the defence should use a fishing rod and not a net. He submits, in applying the decision in Attorney General for NSW v Dylan Chidgey [2008] NSWCCA 65, that the defence have not shown that it is "on the cards" that the documents will materially assist the defence. Mr Chrysostomou submitted that it is only suspicion and conjecture that the material sought will materially assist the defence, and accordingly, the subpoena is too wide and should be set aside, or should be fine tuned and can be narrowed as indicated above. 22In his written and oral submissions, Mr Boland for the accused young person, submitted that the credit of the two police officers involved in these proceedings will be central to the defence case. He said that the case involves two kids doing nothing wrong, there were no drugs or other criminal activity, however they were pulled out of their vehicle and assaulted by the police. Mr Boland gave the Court details of some recent information that had come to the attention of the defence in relation to the unlawful activities of one of the police officers involved, and that this increases the likelihood that it is "on the cards" that the subpoena will unearth material that will materially assist the defence. 23In relation to Mr Chrysostomou's submission concerning the issue of tendency, that it is necessary for the accused young person to establish the threshold question of probity, having regard to the provisions of s 97(1)(b) of the Evidence Act, Mr Boland submits that this submission is wrong. Mr Boland submits that in relation to documents being sought under subpoena, that the test is set out in Alistair v The Queen (1984) 154 CLR 404, namely that it is "on the cards" that the documents will materially assist the defence, and that the Evidence Act has no application. 24I accept Mr Boland's submission in this regard, and I find that at the current pre-trial stage of the proceedings, when considering issues relating to the production of material under subpoena, the provisions of s 97 of the Evidence Act have no relevance or application. The Law 25Mr Boland submitted, relying on the decision in Waind v Hill and National Employer's Mutual General Association Ltd [1978] 1NSWLR 372, that the handling of documents pursuant to a subpoena was a three step process, the first being obedience to the subpoena and bringing the documents to the court. There is no need to further explore this issue, because Mr Chrysostomou has produced the documents, on behalf of the NSW Police Force, to the Court. In this regard, four bundles have been received by the Court, namely a redacted and an un-redacted bundle in relation to each named police officer. The redacted bundle contains a copy of the documents with the names of complainants etc being edited out. 26Mr Boland's written submission correctly sets out the relevant law in relation to the need to establish a legitimate forensic purpose for the production of material under subpoena. Mr Chrysostomou did not challenge the correctness of Mr Boland's submissions in this regard. 27It is convenient to reproduce Mr Boland's written submissions in relation to the Law relating to Legitimate Forensic Purpose: In Attorney General for NSW v Dylan Chidgey [2008] NSWCCA 65, Beazley JA (with James J and Kirby J agreeing) stated at [80]: "This Court has already stated what the test is and in my opinion, should continue to apply that test in accordance with the language used in the form in which it has stood since Alister v The Queen (1984) 154 CLR 404 (at 414) and R v Saleam (1999) 16 NSWLR 14." The relevant passage of Gibbs CJ in Alister is extracted at [68] of Chidgey as follows: "Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence." At [64] of Chidgey, Beazley JA approved the test articulated in R v Saleam [1999] NSWCCA 86: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was". Beazley JA also observed at [70] of Chidgey: "The Attorney General indicated that Simpson J's formulation in R v Saleam [1999] represented the commencement of a line of authority in which the test for the production of, or access to, documents, was specifically stated as comprising two steps: a legitimate forensic purpose and that it was "on the cards" that the documents would materially assist the case. However, in stating the test in this specific "two step" way, her Honour did not state any new principle. As I have already stated at [64], in the authorities that preceded R v Saleam [1999], including Alister, the courts, in determining whether access would be granted to documents sought on subpoena, have always applied a test that involves determining whether each of the factors identified by Simpson J have been established". Subpoena too wide - fishing expedition 28In response to the assertion that the subpoena in this case is drafted to wide, Mr Boland submitted it has been deliberately limited in its scope and as such is not too wide nor is it a fishing expedition. The subpoena is limited to legitimate unprivileged complaints by members of the community regarding unlawful or improper conduct; the subpoena is addressed specifically to the Commissioner and not to the Ombudsman or the Police Integrity Commission. 29The Court notes the limited time period covered by the subpoena, namely the period 1 January 2012 to 1 March 2014. Adjudication 30It is conceded that the Prosecution case will depend entirely on the evidence of Sgt D and Sen Const B. During the submissions made in relation to the subpoena in this case, the Court has been provided with a copy of the statements of these two witnesses. 31The defence case will be that the accused young person was doing nothing wrong and was not committing any offence when she was confronted by the police on this night, removed from her vehicle and eventually arrested and charged by the police. 32The defence contend that the police officers, or at least one of them, has a certain reputation - the details of which are set out on pages 8 and 9 of Mr Boland's written submissions, and I do not intend to repeat them here. 33I am satisfied, having regard to the circumstances of this case, as set out above, and also having regard to the written submissions of Mr Boland, all of which have not been incorporated into this judgment (the submissions are on file), that the defence have established that there is a legitimate forensic purpose in seeking the documents set out in the subpoena. If such documents exist, they may enable the defence, in the context of the circumstances of this case, to test the credibility of the two prosecution witnesses, including perhaps demonstrating a tendency of these police to in engage in overzealous or otherwise unlawful conduct while purportedly in the execution of their duty as police officers. I am also satisfied that it is "on the cards" that the documents sought under the subpoena, if they exist, will materially assist the defence case, having particular regard to the circumstances of the prosecution case. 34I find that paragraph (h) of the subpoena in this case is not too wide and does not amount to a fishing expedition; that a legitimate forensic purpose has been demonstrated, and that it is on the cards that the document will materially assist the defence case. Accordingly the application to set aside the subpoena is dismissed. 35Having made this finding, I have approached the second step in the procedure set out in Waind, namely the use to be made of the documents that have been produced to the court under the subpoena, namely whether to allow inspection of the documents by the defence in this case. 36I have had the opportunity to inspect the documents that have been produced, and I have come to the conclusion, without having read the documents but noting the nature of the editing or redactions, that it is appropriate that the redacted versions of the documents relating to each of the police officers named in the subpoena be made available for inspection by the defence. If there is a need, which I doubt, for the un-redacted versions to be made available for inspection by the defence, then an application in that regard can be made to the Court. 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. Decision last updated: 17 June 2014