Director of Public Prosecutions (NSW) v So [2014] NSWLC 16

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v So [2014] NSWLC 16 Hearing dates: 03/09/2014 Decision date: 01 October 2014 Jurisdiction: Criminal Before: Magistrate Buscombe Decision: The Accused's application for production of documents is refused. Catchwords: EVIDENCE - Evidence Act 1995, Part 4.6, Div 1 - request for production of documents - committal proceedings - implied powers Legislation Cited: Bail Act 2013 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Canon v Tahche (2002) 5 VR 317 Carter v Hayes (1994) 61 SASR 451 DPP v Shirvanian (1998) 44 NSWLR 129 Gaffee v Johnson (1996) 90 A Crim R 157 Grassby v R (1989) 168 CLR 1 Jackson v Sterling Industries Ltd (1986) 69 ALR 92 R v Brown [1998] AC 367 Rice v Chute (1995) 119 FLR 181 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 Category: Interlocutory applications Parties: Tony So (the Accused) Director of Public Prosecutions (NSW) (DPP) Representation: Mr J M Giorgiutti (for the Accused) Ms G Mitchell (for the DPP) File Number(s): 2014/116644

Judgment 1The Accused (A) has brought an application under s 169 of the Evidence Act 1995 (NSW) (EA) for "an order that the DPP produce to the applicant within 7 days the documents sought by the accused by email dated 25 June 2014". 2While the primary basis of A's application was s 169 of the EA, he also submitted that this Court had an implied power to order the production of the documents sought in order to ensure that A receives a fair trial, and to ensure that the Director of Public Prosecutions (DPP) complies with its obligation of disclosure to the Court. 3Before considering the arguments advanced by A it is necessary to outline briefly the context in which the application is to be considered. 4A is charged with the following offences: That between 4.30pm and 4.35pm on 16 April 2014 at Lilyfield he did participate in a criminal group with Michael Shi and Moheen Mohammed, and knew or ought to reasonably have known that it was a criminal group, his participation in which contributed to the occurrence of a criminal act, to wit the large commercial supply of 2018.7 grams of methylamphetamine. Between 4.30 pm and 4.35pm on 16 April 2014 at Lilyfield he did supply an amount of a prohibited drug, to wit, 2018.7 grams of methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug. 5I should note that at the time of the application the brief of evidence had not yet been served, it having been ordered to be served by 25 September. A remains bail refused and has a release application pending. The proceedings are committal proceedings. 6On 25 June 2014 the solicitor for A wrote to the DPP requesting that the DPP produce to A a list of documents. That list of documents is identical to a list of documents contained in a schedule to a subpoena to the New South Wales Crime Commission (NSWCC). Some paragraphs of that subpoena have been answered by the NSWCC while others were set aside by me upon application by the NSWCC, on the basis that they lacked a legitimate forensic purpose and constituted an attempt to in effect gain discovery against a third party. 7By letter dated 14 July 2014 the Director replied to A's request. The letter noted that the Director did not possess any of the items referred to in paragraphs 2, 3, 6, 7, 8 and 9 of the request. It also noted that the items set out in paragraphs 1 and 5 of the request would not form part of the police brief of evidence. In relation to paragraph 4, the Director noted that the warrants would be served as part of the brief of evidence once the telephone intercept transcripts were completed. In relation to paragraph 10 of the request, the Director indicated that he understood no search warrants were executed upon A's premises, and consequently there were no documents that fell within that paragraph of the request. The Director otherwise in essence declined to comply with A's request.