Supreme Court New South Wales Medium Neutral Citation: Dylan Williams v Constable Alexander Cronin and the Local Court of New South Wales [2014] NSWSC 1578 Hearing dates: 4 November 2014 Decision date: 06 November 2014 Before: Wilson J Decision: See paragraph [16] Catchwords: APPEALS AND REVIEW - Appeal against magistrate's refusal to grant access to subpoenaed material - legitimate forensic purpose - orders by consent - no matter of principle Legislation Cited: Crimes (Appeal and Review) Act 2001 Cases Cited: Alister v R [1983] HCA 45; (1984) 154 CLR 404; Attorney General for NSW v Chidgey [2008] NSWCCA 65. Category: Procedural and other rulings Parties: Dylan Williams (Plaintiff) Constable Alexander Cronin (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: CA Webster SC (Plaintiff) M England (First Defendant) Submitting ppearance (Second Defendant) Solicitors: Archbold Legal (Plaintiff) Mr Benjamin Coles (First Defendant) I V Knight (Second Defendant) File Number(s): 2014/00159089 Decision under appeal Date of Decision: 2014-04-29 00:00:00 Before: Magistrate Goodwin Judgment 1On 20 July 2013 the plaintiff, Dylan Williams, was charged by police with an offence of Assault Occasioning Actual Bodily Harm, contrary to s.59 Crimes Act 1900. The person alleged to have been assaulted by the plaintiff is Erica Swick. 2The plaintiff entered a plea of not guilty to the charge and the matter was listed for hearing before the Downing Centre Local Court on 3 February 2014. The hearing commenced on that day but was adjourned part heard to 29 April 2014 before Magistrate Goodwin. 3In the interim the plaintiff issued subpoenas to a number of recipients, including Dr. Christine Pascott, the Alma Street Adult Mental Health Service, and two Western Australian hospitals, the Sir Charles Gardiner Hospital and the Graylands Hospital. 4When the summary hearing resumed before her Honour on 29 April 2014, documents were produced in response to the subpoenas and, although access was granted to some material, the learned Magistrate declined access to the documents produced to the court by the medical practitioner, health services and hospitals ["the medical material"]. The plaintiff signalled his intention to appeal against that refusal and the matter was adjourned in the Local Court to permit the appeal proceedings to be filed and finalised. The summary hearing is now listed for further hearing on 4 February 2015. 5On 27 May 2014 a summons commencing the current proceedings was filed and served. The summons (as later amended) seeks relief pursuant to the Crimes (Appeal and Review) Act 2001 or, alternatively, an order in the nature of certiorari or a declaration that the Magistrate erred in law. The first defendant, Constable Cronin, opposes the relief sought, contending that leave should not be granted to pursue the appeal and, as to the alternative suit, it is submitted that it is an abuse of process. The second defendant, the Local Court of New South Wales, has filed a submitting appearance. 6The plaintiff's summons was listed for hearing before this Court on 4 November 2014. On that date the parties advised the Court that the question of access to the disputed medical material had been resolved. The parties submitted that the Court should make orders in accordance with terms agreed between the parties, which established a procedure whereby the plaintiff could obtain access to a more limited range of medical material than was originally sought. 7The original subpoenas issued and served upon Dr. Pascott, the Alma Street service and the two hospitals were very broad. Although it is necessary to be circumspect given that the matter did not proceed to a hearing on the merits in this Court, there appeared to be no legitimate forensic purpose behind the subpoenas as drafted and served. Nor did it appear to be "on the cards" that the documents sought would materially assist his case: see Alister v R [1983] HCA 45; (1984) 154 CLR 404; Attorney General for NSW v Chidgey [2008] NSWCCA 65. 8The subpoenas issued by the plaintiff appeared to constitute little more than a "fishing expedition" and my preliminary view was that there was no error of law in the decision of the learned Magistrate to refuse access to the medical material that had been produced to the Local Court. 9In effect, the orders now jointly proposed by the parties would, without requiring the issue of further subpoenas, permit or require the plaintiff to significantly refine the medical material to which he seeks access, limiting it to medical records and documents relating to Ms. Swick, and concerning incidents involving the Western Australian Police on four specific dates, being 20 January 2013, 22 January 2013, 17 December 2013 and 31 December 2013. 10In turn, the first defendant concedes that the plaintiff is able to establish a legitimate forensic purpose for certain of the material sought by the subpoenas served upon Dr. Pascott, the Alma Street service, and the two Western Australian hospitals. 11The extent to which the first defendant concedes that a legitimate forensic purpose is or can be established is confined to medical records and documents relating to Ms. Swick concerning incidents involving Western Australian Police on 20.1.2013, 22.1.2013, 17,12.2013, and 31.12.2013. 12The first defendant disputes that there is any legitimate forensic purpose otherwise than as conceded. 13The proposed orders grant access to the medical material to the first defendant, such that the first defendant is enabled to review the material, and determine which documents relate to the particularised dates. Access to the medical material which is outside the narrowed confines of what the plaintiff now seeks will be prohibited. Access will be permitted to the medical material relevant to the specified dates, although subject to any objection that Ms. Swick may wish to make. To facilitate that process, she is to be advised by the first defendant of the existence of the subpoenas, and she is to be given an opportunity to object to a grant of access to the material now sought by the plaintiff. 14Should Ms. Swick object to the plaintiff being granted access to any of the more limited medical material now sought, it would be necessary for the Local Court to consider the question of a grant of access to the plaintiff, and deal with the matter according to law. 15In that the proposed orders are premised upon a significant narrowing by the plaintiff of the material to which he seeks access, and the first defendant concedes that there is a legitimate forensic purpose in seeking this material, it is appropriate for the Court to make the orders in the terms proposed by the parties. ORDERS 16By consent the Court orders that: (1)Pursuant to s.54(1) of the Crimes (Appeal and Review) Act 2001, the Plaintiff be granted leave to appeal against the order of the Local Court made on 29 April 2014 in the proceedings Police v Dylan Williams, refusing access to documents produced on subpoena to Dr. Christine Pascott, Alma Street Adult Mental Health Service, Sir Charles Gardiner Hospital and Graylands Hospital Campus ('the Local Court order'). (2)Pursuant to s. 55(3)(a) of the Crimes (Appeal and Review) Act 2001, the Local Court order be set aside. (3)Pursuant to s. 55(3)(a) of the Crimes (Appeal and Review) Act 2001, in lieu of the Local Court order: (a) Access to the documents produced on subpoena by Dr. Christine Pascott, Alma Street Adult Mental Health Service, Sir Charles Gardiner Hospital and Graylands Hospital Campus (together, 'the subpoenaed documents') shall be granted to the First Defendant (by his legal representatives); (b) Within 14 days of the date of these orders, the First Defendant (by his legal representatives) shall access and review the subpoenaed documents; (c) Within 14 days of the date of these orders, the First Defendant (by his legal representatives) shall divide the subpoenaed documents into two parts marked as follows: (i) 'ACCESS PROHIBITED: Documents produced on subpoena by Dr. Christine Pascott, the Alma Street Adult Mental Health Service, Sir Charles Gairdner Hospital and Graylands Hospital Campus, in relation to which access is prohibited.' (ii) 'ACCESS PERMITTED, SUBJECT TO ANY OBJECTION BY MS. SWICK: Documents produced on subpoena by Dr. Christine Pascott, the Alma Street Adult Mental Health Service, Sir Charles Gairdner Hospital and Graylands Hospital Campus, in relation to which access is permitted, subject to the determination of any objection to access by Ms. Erica Swick'; and return the subpoenaed documents to the Local Court Registry, in the above two parts, marked as set out above. (d) For the purposes of Order 3(c) above, the First Defendant (by his legal representatives) shall place the following subpoenaed documents into the 'ACCESS PERMITTED' bundle of documents referred to above: 'All medical records and documents relating to patient Ms. Erica Swick (date of birth 22/4/90), concerning incidents involving the Western Australian Police on 20 January 2013, 22 January 2013, 17 December 2013 and 31 December 2013.' The remaining subpoenaed documents shall be placed by the First Defendant (by his legal representatives) into the 'ACCESS PROHIBITED' bundle of documents. (e) The First Defendant shall cause Ms. Erica Swick to be notified in writing, within 7 days of the return of the subpoenaed documents to the Local Court Registry, that she has a right to object to access to the documents marked 'ACCESS PERMITTED, SUBJECT TO ANY OBJECTION BY MS. SWICK', within 14 days of the date of the correspondence by which Ms. Swick is so notified. (f) Within 7 days of complying with order 3(e), the First Defendant shall notify the Plaintiff of the date on which order 3(e) was complied with. (g) If that 14 day period expires without Ms. Swick taking any objection to access, the Plaintiff is to be granted access to the documents marked 'ACCESS PERMITTED, SUBJECT TO ANY OBJECTION BY MS. SWICK'. However, if Ms. Swick takes any objection to access within that 14 day period, the Plaintiff is not to be granted access unless and until the Local Court of New South Wales considers Ms. Swick's objection and grants access to the Plaintiff. (4) The Amended Summons filed on 22 July 2014 be otherwise dismissed. (5) Each party and the Commissioner of Police for NSW, bear their own costs of the proceedings. NOTATION: A. The Court notes that, as at the time of entry of these orders, the legal representatives of the First Defendant are Ms. England of Counsel and Mr. Benjamin Coles, solicitor with carriage of the matter on behalf of I V Knight, Crown Solicitor. B. The Court notes the orders of 22 July 2014, that the Commissioner of Police for NSW be removed as a party to these proceedings (order 2) and that costs to the date of that order be reserved (order 4). 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: 11 November 2014