Citation: Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 28 March 2008
Judges: Beazley JA; James J; Kirby J
Background
The respondent faced five charges of supplying a prohibited drug and one charge of ongoing drug supply under the Drug Misuse and Trafficking Act 1985, arising from alleged sales of Ecstasy tablets to undercover police officers. The undercover operation was authorised under the Law Enforcement (Controlled Operations) Act 1997. During committal proceedings, the respondent issued a subpoena to the Commissioner of Police requiring production of documents relating to the controlled operation, including the applications made to obtain approval for that operation.
The Commissioner applied to have part of the subpoena set aside, arguing there was no legitimate forensic purpose for seeking those documents. The respondent argued the documents were needed to potentially challenge the admissibility of the prosecution's evidence under s 138 of the Evidence Act 1995, suggesting there may have been some impropriety in how the controlled operation authorities were issued.
The Magistrate rejected the respondent's stated purpose but declined to set aside the subpoena on a different, self-identified basis: that the respondent was entitled to inspect the documents to "check that there has been compliance with form." The Attorney General, though not an original party, appealed that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the Attorney General had standing to bring an appeal against an interlocutory order in criminal proceedings under s 5F of the Criminal Appeal Act 1912
- Whether the Magistrate correctly identified a "legitimate forensic purpose" for production of documents under the subpoena
- Whether the respondent had established that it was "on the cards" that the subpoenaed documents would materially assist the defence case
Decision
The Court of Criminal Appeal, with James J and Kirby J agreeing with Beazley JA, held that the Attorney General did have standing to bring the appeal under s 5F(2) of the Criminal Appeal Act 1912. The provision confers a right of appeal against interlocutory judgments or orders, and the Court confirmed that right extended to the Attorney General in the circumstances of this case.
On the substantive issue, the Court confirmed that the test for production of documents under subpoena is a two-stage process. The party seeking access must first identify a legitimate forensic purpose and then establish that it is "on the cards" that the documents will materially assist the case. Mere relevance does not satisfy the legitimate forensic purpose requirement.
The Court found that the Magistrate's identified purpose, namely inspecting documents to "check compliance with form," amounted to nothing more than a fishing expedition. There was no evidence before the Magistrate of any failure to follow procedures, any wrongdoing, or any other basis from which it could be inferred that the subpoenaed material would materially assist the defence. The respondent had not identified any concrete basis to suggest the documents would reveal anything useful.
Accordingly, the Magistrate erred in law in allowing access to the documents. The Court allowed the appeal and struck out the relevant paragraph of the subpoena, while expressly noting that the respondent retained the right to issue a fresh subpoena if a legitimate forensic purpose could be properly established.
Orders Made
- Appeal allowed
- The Magistrate's determination of 21 July 2006 dismissing the application to set aside paragraph 3 of the schedule to the subpoena set aside
- Paragraph 3 of the subpoena struck out
Key Takeaways
- The Court of Criminal Appeal confirmed that the Attorney General holds a right of appeal under s 5F(2) of the Criminal Appeal Act 1912 against interlocutory orders in criminal proceedings, even where the Attorney General was not an original party below.
- The two-step test for subpoena production requires the party seeking access to identify a legitimate forensic purpose and to show it is "on the cards" that the documents will materially assist the case; satisfying one limb alone is insufficient.
- Mere relevance of documents does not constitute a legitimate forensic purpose for the purpose of resisting an application to set aside a subpoena.
- Where there is no evidence of procedural failure, wrongdoing, or any other concrete foundation, a purpose of "checking compliance" with a statutory scheme amounts to a fishing expedition and will not sustain a subpoena for production.
- Striking out a subpoena paragraph does not permanently foreclose further subpoenas: the Court expressly preserved the respondent's right to issue a fresh subpoena grounded in a properly established legitimate forensic purpose.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 227
- Director of Public Prosecutions Act 1986 (NSW), s 8
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Evidence Act 1995 (NSW), s 138
- Interpretation Act 1987 (NSW), s 33
- Law Enforcement (Controlled Operations) Act 1997 (NSW), various provisions
- Local Courts (Criminal and Applications) Procedure Rule 2003, cl 47
Key Cases:
- Alister v R (1984) 154 CLR 404
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
- Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498
- R v Saleam [1999] NSWCCA 86
- Ragg v Magistrates' Court of Victoria & Corcoris [2008] VSC 1
- Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372
- Regina v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616
- Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327; 57 NSWLR 310