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Court of Criminal Appeal 30 January 2008

Jovanovski v R

[2008] NSWCCA 9

Also reported as 181 A Crim R 372
Assault & violenceTheft & propertyPublic order & justice offences
PRACTICE SUBPOENAS WHETHER INSPECTION SHOULD BE GRANTED LEGITIMATE FORENSIC PURPOSE REASONABLE CHANCE OF SUPPORTING DEFENCE

Citation: Jovanovski v R [2008] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 30 January 2008
Judge(s): Hodgson JA; Kirby J; Buddin J

Background

The applicant faced three charges in the District Court: detaining a complainant without consent (with occasioning of actual bodily harm), stealing a motor vehicle, and intimidating the complainant. He pleaded not guilty to all charges. As part of his defence preparation, he served a subpoena on the Illawarra Counselling Centre requiring production of all records relating to the complainant.

The complainant opposed access to the produced documents. The primary judge, Conlon DCJ, inspected the documents and granted access to two paragraphs from the notes of one counselling session (15 January 2007), but refused access to everything else. He refused access to the notes from the second session (13 February 2007) entirely, on the basis that those notes were simply not capable of giving rise to a legitimate forensic purpose.

The applicant sought leave to appeal that ruling in the Court of Criminal Appeal, arguing that once a legitimate forensic purpose had been accepted, the primary judge was wrong to withhold access to the remaining documents.

  • Whether, once a court accepts that a legitimate forensic purpose exists for inspecting subpoenaed documents, it is nevertheless permissible to withhold access to portions of those documents that the judge considers will not assist the defence.
  • Whether the test for establishing a legitimate forensic purpose is stricter where the forensic purpose relates solely to a witness's credibility, rather than to a fact in issue.
  • Whether the primary judge erred in finding that the 13 February 2007 counselling notes were incapable of serving a legitimate forensic purpose.

Decision

Hodgson JA (with Kirby J and Buddin J agreeing) refused the application for leave to appeal. The Court observed that while the principles stated in R v Saleam caution against a judge withholding access merely because he or she can see nothing in the documents that will assist the accused, the primary judge in this case went further: he inspected the documents and made a separate assessment about which portions were capable of serving the identified forensic purpose. The Court found no appellable error in that approach on the facts.

On the second ground, the applicant argued that the primary judge's description of the 13 February 2007 notes as a "wrap up" of the complainant's progress suggested her police statement (which indicated she was still receiving counselling) was inconsistent. Hodgson JA rejected this interpretation, noting that his own inspection of the documents did not support it.

The Court also raised an important point about the applicable standard where the forensic purpose is limited to credibility. Under ss 102 and 103 of the Evidence Act 1995, evidence relevant only to credibility is inadmissible unless it has substantial probative value. This means the threshold for admissibility of credibility evidence is higher than for evidence relevant to a fact in issue. Hodgson JA indicated that Hunt J's statement in R v Saleam (decided before the Evidence Act) that the test for credibility-only material is "no stricter" may no longer be correct.

Hodgson JA also noted, in closing, that the subpoenaed documents would be returned to the issuing party and that, if circumstances changed at trial, the applicant might obtain a different ruling from the trial judge.

Orders Made

  • Leave to appeal refused.
  • The respondent was granted leave to make written submissions on costs within seven days, with the applicant having seven days to respond.
  • The subpoenaed documents to be returned by the Registrar.

Key Takeaways

  • Accepting that a legitimate forensic purpose exists does not automatically entitle a party to full access to all subpoenaed documents. The primary judge retains a discretion to limit access to portions of documents that are capable of serving that purpose.
  • Under the Evidence Act 1995, credibility evidence is only admissible in cross-examination if it has substantial probative value (s 103). This higher threshold is relevant when assessing whether a forensic purpose directed at credibility justifies access to subpoenaed documents.
  • The Court of Criminal Appeal signalled that the pre-Evidence Act principle (from R v Saleam) that the test for credibility-only forensic purposes is "no stricter" than for other purposes may need to be reconsidered in light of the Evidence Act regime.
  • No error was established on the second ground of appeal: the Court's own inspection of the counselling notes did not support the applicant's characterisation of the primary judge's remarks about the February 2007 session.
  • In dismissing the application, the Court left open the possibility that a changed factual landscape at trial could produce a different ruling on access from the trial judge.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 102 and 103

Cases:
- Alister v The Queen (1984) 154 CLR 404
- R v Saleam (1989) 16 NSWLR 14
- NSW Commissioner of Police v Tuxford [2002] NSWCA 139
- Roads and Traffic Authority of New South Wales v Conolly [2003] NSWSC 327; (2003) 57 NSWLR 310