Mann v Commissioner of Police

By summons filed on 27 September 2019, Melinda Mann (the plaintiff) seeks leave to appeal against the decision of McGowan LCM (the magistrate) made on 26 June 2019 setting aside a subpoena issued to the Commissioner of Police, the first defendant (the Commissioner). The subpoena sought the criminal records of witnesses to be called as prosecution witnesses in the Local Court in summary proceedings in which the plaintiff stood charged with three offences: common assault, assault occasioning actual bodily harm and intentionally or recklessly destroy/damage property (the offences).

The plaintiff invokes this Court’s jurisdiction under s 53 of the Crimes (Appeal and Review) Act 2000 (NSW) (the Act) and, in the alternative, s 69 of the Supreme Court Act 1970 (NSW).

There are four grounds of appeal and a number of sub-grounds. The plaintiff’s principal submission is that the magistrate applied the wrong test for determining whether the subpoenas ought be set aside.

Under Pt 51B of the Supreme Court Rules 1970 (NSW), a summons for leave to appeal under Part 5 of the Act is to be brought within 28 days of the material date. The plaintiff requires an extension of time for leave to appeal as the material date was 26 June 2019 and the summons was filed on 27 September 2019. The Commissioner did not raise any prejudice occasioned by the delay. I note that Mr Rofe, who appeared for the plaintiff in the Court below, foreshadowed, immediately after the magistrate had delivered reasons and made orders, that the plaintiff would appeal the decision and sought a stay and an adjournment of the substantive hearing to enable that to occur. I am satisfied that it is appropriate for an extension of time to be granted.

Section 53(3) of the Act relevantly provides:

Section 54(1) of the Act provides that this Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. Under s 54(4), if the Court grants leave to appeal, it may proceed to hear the appeal immediately or adjourn the appeal proceedings.

Section 55(3) of the Act relevantly provides that this Court may determine an appeal against an order referred to in s 53(3)(b) by setting aside the order and making such other order as it thinks just, or dismissing the appeal.

Section 70(1)(c) of the Local Court Act 2007 (NSW) provides that an appeal to this Court may be made in accordance with Part 5 of the Act in the same way as such an appeal may be made in relation to a conviction from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW).

Section 69 of the Supreme Court Act confers jurisdiction on this Court to give relief in the nature of prerogative relief for jurisdictional error and error on the face of the record.

Section 227 of the Criminal Procedure Act 1986 (NSW) provides:

On 1 January 2019 the plaintiff was charged with the offences by court attendance notice. The matter was listed before the Local Court at Wagga Wagga on 20 February 2019. On that day, the plaintiff entered pleas of not guilty. The matter was set down for a defended hearing on 27 June 2019.

On 22 May 2019, the plaintiff’s solicitor wrote to the officer in charge of the investigation (the OIC) and said:

The police prosecutor responded on 30 May 2019 as follows:

I note that Mr Rofe, who appeared for the plaintiff before the magistrate, inferred from this response that the police prosecutor conceded that the witnesses did have criminal records. However, Ms Wasley, who appeared on behalf of the plaintiff before me, accepted that the prosecutor had made no such concession.

On 31 May 2019, the plaintiff’s solicitors, the Aboriginal Legal Service (ALS), served a subpoena seeking production of the criminal histories and criminal antecedents of the two complainants. The subpoena was listed for mention on 19 June 2019 and stood over to 26 June 2019 on the basis that the Commissioner proposed to object to the subpoena. On 25 June 2019, the Commissioner served an application to set aside the subpoena pursuant to s 227 of the Criminal Procedure Act 1986 (NSW) on the basis that no legitimate forensic purpose had been identified.

The Commissioner’s application was heard by the magistrate on 26 June 2019. Mr Coffey, who appeared on behalf of the Commissioner, relied on written submissions to the effect that the subpoena had not been shown to have a legitimate forensic purpose. Mr Rofe, who appeared on behalf of the plaintiff, identified what he alleged were two forensic purposes: first, “to attack the character of the prosecution witnesses” and, second, “to attack the credit of the prosecution witnesses”. He relied on R v Jenkin (No 2) [2018] NSWSC 697 (Jenkin) and R v Mokbel (Ruling No 1) [2005] VSC 410 in support of the submission that it was not for the Commissioner to decide what was, and what was not, relevant to the defence case.

Mr Rofe said, in oral submission to the magistrate:

In response, Mr Coffey submitted that the plaintiff had not identified how any criminal histories of the prosecution witnesses would assist her in defending herself in the prosecution of the charges. Mr Coffey sought to distinguish Jenkin but also submitted that if Jenkin were read as broadly as Mr Rofe contended it ought to be, it would be inconsistent with higher authority such as Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (Chidgey); and Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (Carroll).

The magistrate delivered ex tempore reasons at the conclusion of argument. Her Honour referred to Chidgey and concluded that “the applicant must identify the legitimate forensic purpose for which access is sought and establish it is on the cards that the documents will materially assist [her] case.” Her Honour identified the plaintiff’s submission that her forensic purpose was to “hopefully cast doubt on the character and credibility” of the two complainants. Her Honour said:

Her Honour continued:

Her Honour referred to Jenkin as follows:

Her Honour concluded:

Following the making of orders, Mr Rofe foreshadowed an appeal to this Court. On this basis, the hearing of the matter in the Local Court was adjourned.

The outcome of this appeal turns on the application of the general principles to the present case and the effect, if any, of the judgment of Hamill J in Jenkin in the present context.

The general principles are not in issue. Once the ambit of a subpoena is put in issue, the issuing party is obliged to identify a legitimate forensic purpose for which the documents are sought. It is not sufficient that the documents falling within the ambit of the subpoena could, or might be, relevant, it must actually be ‘on the cards’. Subpoenas are not to be used for the purposes of “fishing expeditions”.

In an oft-cited passage, Beazley JA (James and Kirby JJ agreeing) in Chidgey said at [64]:

Beazley JA proceeded to address the meaning of “on the cards” and adopted the test approved by Bell J in Ragg v Magistrates Court of Victoria (2008) 18 VR 300; [2008] VSC 1 at [96] in which his Honour said, in the context of a criminal trial:

The Court of Criminal Appeal in Chidgey expressly disapproved of Adams J’s formulation of the test of legitimate forensic purpose in Roads & Traffic Authority of NSW v Conolly (2003) 57 NSWLR 310; [2003] NSWSC 327 (Conolly) at [12] where his Honour said, after considering the phrase “on the cards”:

Beazley JA rejected this approach at [79] in the following terms:

Applications to set aside subpoenas for the production of the criminal histories of prosecution witnesses have been considered in the authorities although, in the main, the issues have been resolved by agreement prior to or during the course of the hearing (see, for example, Jenkin and Bradley v Senior Constable Chilby [2020] NSWSC 145 (Bradley)) or have related to the prosecutor’s duty of disclosure (as in R v Thompson [1971] 2 NSWLR 213).

Further, the identification of “legitimate forensic purpose” is a matter which is peculiarly contextual. Thus it is not productive to seek to draw conclusions from the authorities beyond the statements of general principle expressed in cases such as Chidgey.

The plaintiff raises the following grounds of appeal, which will be addressed in turn:

This Court’s jurisdiction to review interlocutory orders of the Local Court is confined to grounds that raise questions of law alone.

Ground 1 is said to arise from her Honour’s reasons extracted above in which her Honour purported to summarise Mr Rofe’s submissions. The plaintiff submitted that, in effect, the magistrate characterised the plaintiff’s legitimate forensic purpose as to “check” on whether the Commissioner had complied with his duty of disclosure (ground 1(a)) in the “hope” that the documents produced would provide a basis to impugn the credibility or character of the complainants (ground 1(b)).

I am not persuaded that ground 1(a) can be made out on a fair way of reading her Honour’s reasons. It is well established that a party who is dissatisfied with a prosecutor’s compliance with the duty of disclosure is entitled to have a subpoena issued to obtain the documents sought: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142. In the present case, the plaintiff’s solicitor corresponded with the police prosecutor for that purpose and, having received no documents, arranged for a subpoena to be issued. I do not regard her Honour’s reasons as doing other than recording this process, which was open to the plaintiff. In these circumstances it is not necessary to determine whether ground 1(a) gives rise to a question of law alone since it has not been made out.

Ground 1(b) seeks to challenge her Honour’s analysis of the plaintiff’s motivation in seeking the documents under subpoena. Once again, I consider that Mr Rofe’s submissions (extracted above) were to the effect that the plaintiff wanted the documents with a view to obtaining a basis to impugn the credibility and character of the complainants, as understood by the magistrate.

Ms Wasley submitted that the plaintiff’s identification of legitimate forensic purpose included each of the following:

Nonetheless, the proposed use of the documents (item (3) above) was, properly understood, the forensic purpose of the subpoena whereas items (1), (2) and (4) were circumstances by which Mr Rofe sought to distinguish the present case from the usual case where an accused person wanted the criminal histories and antecedents of prosecution witnesses. I do not discern any error in her Honour’s analysis.

Ground 2 would appear to raise a mixed question of fact and law and therefore fall outside this Court’s jurisdiction under s 53(3)(b) of the Act. I decline to address ground 2, as it does not fall within my jurisdiction. However, I am satisfied that ground 3 as formulated does give rise to a question of law alone and incorporates many of the plaintiff’s submissions in relation to ground 2 which will, accordingly, be considered below.

Ground 3, in effect, contains three sub-grounds:

The test, which was authoritatively stated in Chidgey, was the test that her Honour applied. The test required an affirmative answer to the following two questions: first, has the party at whose request the subpoena was issued identified a legitimate forensic purpose for the documents; and, second, was it “on the cards” that the material would materially assist the accused? It was not sufficient that there was a reasonable chance that the material, if produced, would assist the defence case in some way: this was the test formulated by Adams J in Conolly which was expressly disapproved in Chidgey.

The expression “on the cards” was first used in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 where Gibbs CJ said at 414, in the context of a claim for public interest immunity:

The “on the cards” test was adopted by Hunt J in R v Saleam (1989) 16 NSWLR 14 at 18, by analogy in the context of a subpoena issued to police, as appears from the following passage:

His Honour continued, in a passage on which the plaintiff relied in this Court:

Hunt J also said, at 21, in the context of the question whether new material will lead to the quashing of a conviction:

I note that the Court of Appeal in Jovanovski v R [2008] NSWCCA 9; (2008) 181 A Crim R 372 (Hodgson JA, Kirby and Buddin JJ agreeing) expressed reservations at [22]-[23] about the correctness of this statement in light of the provisions of the Evidence Act 1995 (NSW) and, in particular s 103 which excepts the credibility rule from cross-examination of a witness “if the evidence could substantially affect the credibility of the witness” (Emphasis added); see also, R v RPS (Court of Criminal Appeal (NSW), 13 August 1997, unrep) Hunt CJ at CL (Gleeson CJ and Hidden J agreeing). There was no material before her Honour to enable an assessment to be made as to whether, and to what extent, the documents sought could affect the credibility of the prosecution witnesses. In these circumstances, the question of substantial effect did not need to be addressed as a separate consideration to the issues of legitimate forensic purpose and the “on the cards” test.

In the present case, her Honour was neither satisfied that the plaintiff had identified a legitimate forensic purpose, nor that it was “on the cards” that the documents sought would materially assist the plaintiff. Accordingly, the subpoena was set aside. I am not persuaded that her Honour applied the incorrect test or that it was not open to her Honour to find as she did. This aspect of ground 3 has not been made out.

This ground (3(a)) derives from what her Honour said in the passage set out above about there being other forensic alternatives if the subpoena were not set aside. The existence of alternatives does not answer the question whether a party at whose request a subpoena has been issued has a legitimate forensic interest in the documents. In that sense, the existence of alternatives was irrelevant to the determination of whether the plaintiff had a legitimate forensic interest in the documents sought under subpoena. However, it does not follow from the fact that her Honour mentioned an alternative, cross-examination, that her Honour decided that the plaintiff’s forensic purpose was not legitimate because of a forensic alternative (cf. Bradley at [73]). A fair reading of her Honour’s reasons is that the plaintiff had not established a legitimate forensic interest in the documents and, in any event, the plaintiff would still be able to cross-examine the complainants as to their criminal histories or antecedents, albeit without the benefit of documents to put to them.

In the passage extracted above, her Honour expressly accepted Mr Coffey’s submission that if the criminal histories of these prosecution witnesses were amenable to subpoena, the criminal histories of all prosecution witnesses would be amenable to subpoena. In substance, Mr Coffey submitted that there was nothing to take the present case out of the ordinary case where there was no particular feature which gave the accused person a legitimate forensic purpose in obtaining part or all of the criminal record of prosecution witnesses.

It is a time-honoured feature of legal rhetoric and reasoning to use an argument, as Mr Coffey’s was, based on the device known as reductio ad absurdum. Her Honour accepted the argument, in effect, because she was not satisfied either that there was any forensic purpose beyond that which would exist in any criminal case or that it was on the cards that the documents would materially assist the plaintiff’s case. Her Honour was entitled to accept the argument on the basis of the disapproval of Conolly in Chidgey.

The present case can be readily distinguished from a case such as Bradley where the nature of the offence charged and the circumstances surrounding the alleged offending conduct made the criminal history of the complainant material in so far as it revealed offences of violence, dishonesty or relating to drugs. These categories of offence were relevant because it was alleged that Bradley had bitten the finger of the complainant and that this constituted assault. The defence case was that the complainant, who was under the influence of drugs at the time, had put Bradley into a headlock and that the only way he could get her to release him was to bite her finger. The defence knew that the complainant had already been convicted of assault and wanted to investigate whether the underlying facts showed a propensity to attack others in that way, particularly when under the influence of drugs. The police prosecutor, presumably on the basis that Bradley had identified a legitimate forensic purpose, produced a redacted criminal history of the complainant (limited to the particular categories of offences referred to above) in answer to a subpoena issued on behalf of Bradley. Bradley sought further material, including the police facts in relation to those offences. The police prosecutor refused to consider whether such material was disclosable and was therefore in breach of her duty of disclosure. In that case, I allowed an appeal against the refusal of a stay of proceedings and granted a stay pending discharge by the police prosecutor of her duty of disclosure.

In the present case, the plaintiff sought the entire criminal histories of each of the complainants. There was no attempt to tailor the subpoena to the issues in the case or any basis provided to show the relevance of such histories, if they existed, beyond the general assertion that they could be relevant to character and credibility.

It is also of some significance that the Commissioner has specifically addressed the criminal histories of the complainants in the context of the duty of disclosure and has written to the plaintiff’s solicitors to confirm that he has done so and that there is nothing to disclose. While an accused person is entitled to issue a subpoena in circumstances where it is alleged that the prosecution has not complied with its duty of disclosure, the Commissioner’s letter shows that the Commissioner considered the matter by reference to that duty (cf. Bradley).

Her Honour was referred to Chidgey and applied the test stated in that case to the present case. Although her Honour was concerned about the consequences for other cases of not setting aside the subpoena, I am not persuaded that her Honour’s decision was other than on the basis of the application of the test.

The plaintiff submitted that Jenkin ought to have been applied by the magistrate and that, had her Honour applied it, the subpoena would not have been set aside. Because of the importance of Jenkin to ground 4, it is necessary to examine what Jenkin decided in some detail.

In Jenkin, the accused, who was charged with murder, arranged for a subpoena to be issued to the Commissioner for the criminal histories of prosecution witnesses. The Commissioner sought to have the subpoena set aside on the basis that the legitimate forensic purpose had not been identified. Subsequently, the accused’s representatives provided a schedule which identified the submission as to legitimate forensic purpose. Further documents were produced by the Commissioner to the court, including in relation to three of the witnesses who had already been called. In these circumstances, the Commissioner can be taken not to have pressed the application to have the subpoena set aside.

The Commissioner, having produced the documents to the court, resisted an order for general access on the ground that such an order would infringe the right to privacy of the witnesses. He proposed either that the accused’s access to the documents be deferred pending cross-examination or that the documents be redacted to exclude those parts which did not relate to offences of dishonesty or offences of violence.

Hamill J addressed the legitimate forensic purpose of the criminal histories of prosecution witnesses (which was no longer in issue, having regard to the approach taken by the Commissioner) at [2] as follows:

In conclusion, his Honour said at [34]:

Although his Honour purported to decide that the accused had a legitimate forensic interest in the documents, the only issue that remained between the parties for determination was the issue of access. The only orders made by Hamill J were:

Thus, all that Hamill J actually decided was that there was no such claim for privacy recognised by the law and that, access to the documents which had been accepted to be within an identified forensic purpose and which had been produced to the court in answer to a subpoena, was required to be given. In this context, Hamill J’s review of the principles relating to subpoenas and to the prosecutor’s duty of disclosure were purely obiter and do not appear to have been the subject of detailed argument. Nothing which his Honour said in Jenkin could reasonably be read as deviating from the “on the cards” test. Indeed, his Honour expressly referred to it.

Some of the statements made by Hamill J in Jenkin might appear to be inconsistent with the Court of Appeal’s disapproval of Conolly. For example, his Honour said:

His Honour also expressed qualified agreement with the following statement concerning the prosecutorial duty of disclosure from Ormiston JA’s judgment in R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [63] (Charles JA agreeing):

Hamill J said of this statement at [33]:

It is not necessary for present purposes to address the differences between the prosecutor’s duty of disclosure considered in R v Garofalo and the documents which might be amenable to production on subpoena. However, it is important to recall that each of the statements made by Hamill J extracted above was made in the context of the proposal made by the Commissioner as to the limits on access which ought apply to the documents which the Commissioner had produced. Those limits were designed to restrict access to such documents until particular junctures had been reached in the cross-examination of witnesses whose criminal histories had been subpoenaed. The statements set out above, unless limited by their context, would appear to amount to a restatement of what Adams J said in Conolly, which for the reasons given above, is no longer good law in New South Wales.

While in R v Saleam, Hunt J held, at 18 in the passage extracted above, that the same principles applied to a grant of access as they did to an order for production (being the twofold requirement of identification of legitimate forensic purpose and the “on the cards” test), the Commissioner in Jenkin did not contend that no access to the documents ought be granted, but rather that the access ought be limited by time (according to the progress of the cross-examination) and party (for whom the cross-examiner appeared).

It is important to note that, immediately after the paragraphs extracted above, Hamill J made specific and detailed reference to the context in which the question of access arose in the trial which was continuing before him:

I am not persuaded that what Hamill J said ought be read as an endorsement of Conolly, which, since Chidgey, is no longer good law. His Honour ought be taken to have been doing no more than emphasising the significance to the defence case of the documents which the Commissioner had already produced in answer to a subpoena which was no longer sought to be set aside. Further, although Hamill J referred, in Jenkin, to the “on the cards test”, his Honour did not cite Chidgey and may not have been alerted in the course of argument either to its significance as authority which was binding on him or to its express disapproval of Conolly.

That the criminal histories of certain prosecution witnesses were accepted to be amenable to subpoena in Jenkin and Bradley does not mean that they are amenable to subpoena in every case. There were features of Jenkin and Bradley which persuaded the Commissioner in those cases not to make (in Bradley) or press (in Jenkin) an application to set aside a subpoena for the criminal histories. In the present case her Honour was not satisfied that there was any such feature here. I am not persuaded that ground 4 has been made out.

As neither party sought costs, it is not necessary to make any order as to costs.

I make the following orders: