Supreme Court New South Wales Medium Neutral Citation: Beckett v The State of New South Wales [2014] NSWSC 1507 Hearing dates: 27 October 2014 Decision date: 31 October 2014 Before: Harrison J Decision: See paragraphs [29] - [37] Catchwords: PROCEDURE - notice to produce - subpoena to produce - whether material has a legitimate forensic purpose - whether production of material oppressive Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P E Blacket SC & N Broadbent (Plaintiff) J E Maconachie QC, P Saidi & A N Williams (Defendant) Solicitors: Turner Freeman (Plaintiff) I V Knight, Crown Solicitor (Defendant) File Number(s): 2008/289411 Publication restriction: Nil Judgment 1HIS HONOUR: By notice of motion filed on 10 October 2014, Ms Beckett seeks the following orders: (1)The defendant to produce documents referred to and described in the plaintiff's notice to produce dated 18 August 2014 at paragraphs 1, 2, 3 and 4 of the notice to produce. (2)The defendant produce documents referred to and described in the plaintiff's notice to produce dated 25 July 2014 at paragraph 1(b) of the notice to produce. (3)The Office of the Director of the Public Prosecutions produce documents referred to and described in the plaintiff's subpoena dated 15 September 2014 at paragraphs 1, 2, 3, 4 and 5 of the subpoena. (4)The Office of the Director of the Public Prosecutions produce all of the documents referred to and described in the plaintiff's subpoena dated 22 July 2014 at paragraph 1 of the subpoena. (5)The defendant produce all of the documents referred to and described in the plaintiff's notice to produce dated 23 September 2014. (6)The defendant pay the plaintiff's costs. 2Ms Beckett's notice to produce dated 18 August 2014 sought production from the State of New South Wales of the following documents or things: (1)The charge or charge sheet/s number H999992622949 in respect of charges brought against Amanda Joye Marlin at the Taree Local Court on charge date 22 March 1991 in respect of offensive language and resist arrest, heard on Court date 12 July 1991 at Taree Local Court. (2)The fact sheet prepared and/or tendered in respect of the charges at the Taree Local Court in respect of the above charges. (3)The charge or charge sheet/s number H999992622950 in respect of charges brought against Amanda Joye Marlin in respect of make false instrument (2 counts), use false instrument (3 counts) and larceny, on charge date 26 July 1991, heard on Court date 3 September 1991 at the Taree Local Court. (4)The fact sheet prepared and/or tendered in respect of the charges at paragraph 4 [sic, 3] above. 3Paragraph 1(b) of Ms Beckett's notice to produce dated 25 July 2014 sought "the incident reports or complaints directed to the conduct of the following persons." The nominated people are as follows: (1)Leslie James O'Brien (2)James Henry Morris (3)Tracy Ann Taylor (4)William Isaac Ferguson (5)Peter Thomas (6)Carl Paget (7)Barry Catt (8)Roseanne Catt/Beckett (9)Marie Dawn Whalen (10)Amanda Martin (11)Adrian Newell (12)Vernon Taylor 4On 15 September 2014, Ms Beckett filed a subpoena to produce that was served upon the Director of Public Prosecutions seeking production of the following: (1)The entirety of the solicitors file held by the Office of the Director of Public Prosecutions in respect of the prosecution of the plaintiff up to and at her trial, up to and including 11 September 1991. (2)All documents which were marked for identification at the plaintiff's trial in 1991. (3)All correspondence passing between the Office of the Director of Public Prosecutions and the Crown Prosecutor in respect of the prosecution of the plaintiff up to and including 11 September 1991. (4)The entire committal transcript held by the Office of the Director of Public Prosecutions in respect of the charges brought against the plaintiff. (5)All notes made at the committal or the trial made for or on behalf of the Prosecutor, including Counsel's notes at the trial of the plaintiff, up to and including 11 September 1991. 5On 22 July 2014, Ms Beckett filed a subpoena to produce that was served upon the Director of Public Prosecutions seeking production of, relevantly for present purposes, the following: (1)The entire Crown brief in respect of the prosecution of Barry Catt on child sexual assault charges before Justice Wood in matter 70104/1990 commencing at Taree on Monday, 26 November 1990. 6On 23 September 2014, Ms Beckett served a notice to produce upon the State seeking production of, relevantly for present purposes, "all complaints in respect of the conduct of police officers Peter Thomas and/or Carl Paget made by ... (e) Michael Jones, and all attachments to [that] complaint." 7The State responded by filing its own notice of motion on 14 October 2014 seeking the following orders: (1)Pursuant to UCPR 21.11 and 34.2 the defendant be excused from its obligation to produce documents in response to paragraph 1(b) of the plaintiff's notice to produce for inspection directed to the defendant and dated 25 July 2014. (2)Pursuant to UCPR 21.11 and 34.2 the defendant be excused from its obligation to produce documents in response to the plaintiff's notice to produce for inspection directed to the defendant and dated 18 August 2014. (3)The plaintiff pay the costs of this motion. (4)Such further or other order as the Court may deem fit. Contentions 8The State complains that the 18 August 2014 notice to produce has no legitimate forensic purpose and is otherwise oppressive. Although there has been some production in response to the notice, the State otherwise seeks to be relieved from further compliance with it. That was said to be for the following reasons. 9The State anticipates that Ms Beckett wishes to assess whether or not there was any involvement of Peter Thomas or Carl Paget as prosecutors with respect to the charges concerned. The State contends that it is clear on the face of the documents already produced that other officers were involved. Peter Thomas had left the police force by the date in question in any event. To that extent there is said to be no legitimate forensic purpose supporting the production of the documents 10Moreover, given the opinions expressed by Katherine Miranda and David Brumby, undertaking the kind of search for the further material amounted to a task that Mr Williams of counsel for the State described as "gargantuan". In short, a search for all of the documents would potentially involve scores of hours of work, which was neither generally acceptable nor particularly so at the current late stage of the proceedings. 11According to Ms Beckett, Amanda Joy Marlin provided unfavourable evidence at Ms Beckett's trial on the lithium count. She is also the sister of Tracey Mairinger, who has previously been called in these proceedings. Ms Beckett has not been able to locate Ms Marlin. Ms Beckett is keen to establish whether or not Ms Marlin was subjected to any pressure to give evidence against her at the trial and whether or not Mr Thomas or Mr Paget were involved in creating it. Mr Thomas may well have left the police force at the time that the charges were brought, but that says nothing about when the investigation was instigated or whether Mr Thomas or Mr Paget were concerned with it. 12This material is said to have a legitimate forensic purpose. Ms Marlin gave a statement on 14 November 1989. She gave another statement on 20 February 1990. She gave evidence at the committal proceedings on 25 July 1990. As at 21 March 1991 Ms Marlin had no criminal record. However, she was charged on 22 March 1991. Ms Beckett's trial commenced on 13 May 1991 and Ms Marlin gave her evidence at the trial on 19 June 1991. Ms Marlin was charged with further offences on 26 July 1991 and these were heard at Taree Local Court on 3 September 1991. Ms Beckett maintains in the context of the present proceedings, and of her allegations of pressure being exerted upon witnesses, that she is entitled to explore whether Ms Marlin's two prosecutions on the one hand, and her role in the trial on the other hand, might arguably have been related or connected. 13The State complains that the 25 July 2014 notice to produce refers to "incident reports or complaints" which are quite broad words that in context could cover a multitude of documents or categories of documents. The State contended that the language used in the notice to produce is therefore ambiguous and that combined with the evidence about the oppressive exercise involved in retrieving the material, coupled with the very practical and significant difficulties of actually conducting the searches involved, is such that I ought to decline to order production. According to the State, the notice is "vague, ambiguous, broad in its reach and relates to documents [that] from the evidence are not straightforward to locate." 14The State also emphasised that it did not accept in any event that anything arguably responsive to the notice drawn in those terms would necessarily be of any obvious or identifiable relevance in the context of the present proceedings, as opposed to merely trawling for some material that may or may not be of assistance. There has not been disclosed a more precise or identifiable purpose with respect to the documents covered by the notices. 15Ms Beckett seeks incident reports or complaints directed to the conduct of the named persons. Ms Beckett also indicated that she wanted access to the COPS entries or any witness statements in the form of complaints against each of them. These documents deal with police records of the complaints having been made. There may not be COPS entries or records of that nature in existence but Ms Beckett maintained that she was at least entitled to know that much. The task is not onerous and the documents should be produced. 16With respect to the 15 September 2014 subpoena directed to the DPP, a summary of the evidence relied on by the State is to be found in the affidavit of Helen Maamary of 21 October 2014, in particular in her letter dated 20 October 2014 to Ms Beckett's solicitor. That letter is relevantly as follows: "I refer to the subpoena to the Director of Public Prosecutions ("DPP") filed 15 September 2014 and to the Notice of Motion filed by the DPP on 14 October 2014 seeking to set aside the subpoena. I am instructed to seek to set aside the subpoena in its entirety on the basis that it lacks legitimate forensic purpose and is oppressive. The legitimate forensic purpose for the subpoena is difficult to ascertain in circumstances where the plaintiff has specifically disavowed any claim in malicious prosecution against the DPP. In my view, it is also relevant to consider the time at which the subpoena is issued when determining whether it is reasonable to require the recipient to comply with the subpoena. The subpoena calls for a wide range of documents held by the DPP in respect of the prosecution of the plaintiff. I understand that the DPP file regarding this matter constitutes over 40 archive boxes or approximately 120 lever arch folders. I am also advised that it is not immediately apparent what documents are contained in each archive box. It would be necessary to review all 40 archive boxes in order to comply with the subpoena. In light of the above, it is oppressive to require the recipient to review such a large volume of material in the midst of a lengthy trial. I also note that this matter has been on foot since 2008 and at no time prior to 15 September 2014 has the plaintiff sought production of these documents. In addition to the general objections raised above, I make the following comments in respect of the individual paragraphs of the subpoena: In respect of paragraph 1 of the subpoena, I am instructed that no file exists in the form sought in the paragraph. In respect of the documents sought in paragraphs 3 and 5, I note that these documents are prima facie privileged and in accordance with Rule 1.9 of the Uniform Civil Procedure Rules 2005, the Director may not be compelled to produce such documents until the objection has been overruled. In respect of paragraph 4 of the subpoena, the entire committal transcript is contained in the Court Book, which is currently before the Court. There is no apparent legitimate forensic purpose for the production of the "prosecutor's copy" of the committal transcript. Furthermore, having regard to the fact that the Director of Public Prosecutions is a stranger to the proceeding; the use of the word "Prosecutor" in paragraph 5 of the subpoena is vague." 17The State submitted with respect to paragraph 1 of the schedule in the subpoena that there was nothing in existence meeting the description of the solicitor's file held by the DPP so there is nothing to produce. 18With respect to paragraph 2, the State maintained that the subpoena was oppressive. There are apparently some documents that were marked for identification contained within the 120 volumes that constitute the DPP's documents but they are not contained in one useful folder and it is not even clear entirely where they are all located within those documents. 19With respect to paragraphs 3 and 5, the State submitted that the principal argument was that there would be no legitimate forensic purpose in obtaining the documents concerned. This is particularly so in circumstances when neither the Crown Prosecutor nor the DPP is nominated as a prosecutor, as opposed to Peter Thomas and Carl Paget. Moreover, the documents would appear on the face of it unquestionably to be privileged documents that under UCPR 1.9 would not be documents that the Court would order produced in any event. In accordance with authority, the DPP is the client and the Crown Prosecutor or the solicitor for the DPP is the lawyer. The State submitted that it should not be ordered to produce privileged documents. 20With respect to paragraph 4, the State submitted that there was no obvious or legitimate forensic purpose identified by Ms Beckett that would justify the production of this material. 21Ms Beckett conceded that there are, on Ms Maamary's account, 40 archive boxes, or approximately 120 lever arch folders. It is accepted that Peter Thomas is the relevant prosecutor. However, the Crown court book, which purports to be evidence of what was before the prosecutor at the relevant time, is considerably smaller. Ms Beckett accepts that the DPP and Mr Thomas are certainly separate entities, but she contends that there must necessarily be a difference between what was adduced at the trial and what for present purposes is to be considered as relevantly before the prosecutor. Not everything that was before Mr Thomas would automatically or necessarily have gone into evidence. Plainly here there is a significant amount of further material that ultimately did not go into evidence and that is what is now sought. 22Ms Beckett submitted that she should be entitled to test "to the fullest extent possible" how much of that material was indeed before Mr Thomas, and how much of that material was before Mr Paget in the relevant sense. It is presumed, and certainly the transcript from the bail application suggests, that these officers were purporting to conduct an extensive investigation. Nobody at the DPP appears to have been collating material for the purposes of the trial. The crux of what is sought is the material in whatever form, whether or not described or characterised as a solicitor's file, and even if it requires a degree of reconstruction. There is said to be a forensic need for Ms Beckett to have access to this material, to the extent that it is not the subject of a successful privilege argument. 23So far as the question of client lawyer privilege is concerned, the onus of demonstrating the privilege lies with the party who seeks to assert it. Ms Beckett agreed that it may well be that some of the material was privileged. However, that is not a matter that prevents production of the material or at least some examination of it. Moreover, there is at least a prospect that some of the material which previously may have been subject to a claim of privilege may no longer be privileged. For example, the privilege may have been waived in any number of ways, including the manner in which Ms Beckett has been cross examined on a number of occasions since her trial, including in these proceedings. 24Ms Beckett submitted that there was limited force in the argument that the material may be privileged and therefore should not be the subject of production. The appropriate time to object on the basis of privilege is when the documents have actually been produced. 25The State indicated with respect to the 22 July 2014 subpoena that there was nothing further to produce. 26Ms Beckett did not accept that what has already been produced is the whole of the Crown brief. The documents that have been produced consist of a thin bundle of documents that does not contain any other materials indicative of any instructions that may have been given. Mr Thomas gave evidence on behalf of Mr Catt in the proceedings. Ms Beckett contended that the material may relevantly inform what was in his mind as the prosecutor at the relevant time. 27Ms Beckett acknowledged that access to items 2 and 3 may fall foul of the State's claim of privilege. 28Finally, as I understand the State's position with respect to the 23 September 2014 notice to produce, it says that the documents called for have also already been produced. Consideration 29Even though the material sought concerning Ms Marlin may have a legitimate forensic purpose, it is unlikely in my view to have any useful role in fact in the elucidation or proof of an issue in these proceedings. The utility of requiring the State to produce it is therefore marginal at best. It is unlikely in the extreme that the official documentation associated with the charges preferred against Ms Marlin would contain or reveal in terms any suggestion that she was coerced into giving evidence against Ms Beckett at her trial by being charged and prosecuted. The inference which Ms Beckett seeks to draw is therefore unlikely to be strengthened or otherwise informed by the terms of the documents in question. The force of Ms Beckett's contentions appears to me to reside in the temporal connection between the two. It is unfortunate that Ms Marlin is not capable of being located so that she could be interviewed and called as a witness if thought appropriate. 30As a matter of discretion I do not consider that the State ought to be required to produce this material. 31With one exception, I am also not of the opinion that the State ought to be required to produce the material sought in the 25 July 2014 notice to produce. The expression "incident reports or complaints" is neither a term of art nor a specifically and well understood category. The exercise that is required in order for the State properly to comply with the request is likely to be oppressive. 32The exception concerns Messrs Thomas and Paget. The evidence in this case so far has included a large amount of material directed to the conduct and behaviour of these men. It is conceivable that the material sought may include evidence arguably capable of demonstrating or supporting the existence of a tendency that was itself inferentially capable of informing what may have been in their minds as the relevant prosecutors in Ms Beckett's trial. If the material were limited to incident reports and complaints received by the police or one of its entities, such as the Police Internal Affairs, then the scope of the material would be considerably narrowed and the likelihood that its retrieval will become onerous should be correspondingly reduced. 33I appreciate the possible significance of information of the type sought concerning the other named individuals, or at least some of them. I am not, however, satisfied at this late stage of the proceedings that the State should be put to the trouble, inconvenience or expense of having to search for this material. This is particularly so in anticipation of the likelihood that several of these people will be called to give evidence in the case for the State in due course. 34So far as concerns the subpoena dated 15 September 2014 directed to the DPP, I have some considerable sympathy for the proposition that, subject to claims for privilege, the file held by the DPP with respect to the prosecution of Ms Beckett ought to be produced. It is correct to say that this subpoena comes late. It is also correct to say that the material in the file must necessarily have been considered and reviewed by the State for the purposes of the present proceedings. That seems to follow from a common understanding of the issues in these proceedings and what would be necessary as part of a prudent preparation of the case for the State. The fact that proof of the issue of what was before the prosecutor is to a large extent based upon the tender of documents in the hands of the State, including the DPP, and that the State, whether as a model litigant or an ordinary defendant, is subject to a continuing obligation to discover relevant material, encourages me in this view. It may be that all of the relevant material has already been produced. However, Ms Beckett is in my view entitled to have access to the relevant file. If there is a definitional problem concerning the existence of what has been characterised as a "file", it ought to be capable of resolution by agreement between the parties. 35The balance of the items sought in this subpoena must necessarily fall within the material contained in the file. It seems to me that the schedule to the subpoena should be read so that categories (2) to (5) are simply a particularisation of some important matters that Ms Beckett anticipates are likely to be in the file referred to in category (1). The overly cautious if not slightly pedantic terminology in the schedule should not disguise the fact that only one general item is actually being sought. 36I am not satisfied that the DPP should be required to produce what is sought in the 22 July 2014 subpoena. I have listened intently for quite some time to evidence about Mr Catt's trial and the competing versions of the manifold events that were involved in or connected to it. Despite its significance as a piece of relevant criminal proceedings in the lives of Mr Catt, his children and Ms Beckett, amongst many others, its forensic significance in the present proceedings is largely peripheral if not to some extent even marginal. I do not consider that the DPP ought to be required to respond to this subpoena to the extent that material in it has not so far been produced. 37The State contends that the attachments to Mr Jones' complaint have been produced. Mr Jones gave evidence and is otherwise accessible to the parties. If the State's understanding is to be challenged, no doubt Mr Jones will be able to assist. I will reconsider this notice to produce if the parties are not otherwise able to reach an appropriate accommodation about it. ********** 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: 31 October 2014