Citation: Director of Public Prosecutions (NSW) v So [2014] NSWLC 16
Court: Local Court of NSW
Date: 1 October 2014
Judge(s): Magistrate Buscombe
Background
The accused faced two serious drug offences arising from an alleged large commercial supply of approximately 2,000 grams of methylamphetamine at Lilyfield on 16 April 2014. The matter was at the committal stage, and at the time of the application the brief of evidence had not yet been served. The accused was bail refused with a release application pending.
The accused's solicitor had written to the DPP in June 2014 requesting production of a list of documents. That list mirrored a schedule attached to a subpoena previously issued to the NSW Crime Commission, parts of which the Magistrate had already set aside on the basis that they lacked a legitimate forensic purpose and amounted to a fishing expedition.
The DPP declined most of the request, noting it did not possess several of the items sought and that others would be served as part of the brief of evidence in due course. The accused then brought a formal application seeking an order compelling production.
Legal Issues
- Whether s 169 of the Evidence Act 1995 (NSW) empowers a court to order one party to produce documents to another party during committal proceedings
- Whether the Local Court has an implied power to order the DPP to produce documents to an accused in committal proceedings, so as to ensure a fair trial and compliance with disclosure obligations
Decision
Issue 1: Section 169 of the Evidence Act
The court held that s 169 of the Evidence Act does not provide a basis for ordering the DPP to produce documents in these circumstances. Division 1 of Part 4.6, which contains s 169, operates within a narrow and specific context: it governs requests made between parties relating to previous representations, evidence of prior convictions, and questions of authenticity, identity or admissibility of documents or things. The provisions do not create a general pre-trial discovery mechanism or disclosure regime.
Because the documents sought did not fall within the defined categories of "request" in s 166, and no relevant notice under s 167 or s 168 had been given, the threshold preconditions for s 169 to operate were simply not met. The court concluded that the section had no application to the accused's application.
Issue 2: Implied power to order production in committal proceedings
The court rejected the argument that the Local Court possesses an implied power to compel document production in committal proceedings in the interests of a fair trial. Drawing on the High Court's reasoning in Grassby v R (1989) 168 CLR 1, the Magistrate observed that committal proceedings are not a judicial inquiry but an executive or ministerial function. Accordingly, the powers exercised by a magistrate in that context do not carry the same implied powers that attend the exercise of judicial functions in summary trial proceedings.
Even if such a power did exist, the court found no proper basis for exercising it at this point. With no brief of evidence yet served, the issues likely to arise at trial could not be identified with any certainty, making it impossible to assess whether withholding the documents would render any future trial unfair.
Orders Made
- The accused's application for production of documents is refused.
Key Takeaways
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Section 169 of the Evidence Act 1995 (NSW) operates within the confined scope of Division 1 of Part 4.6, which is limited to requests about previous representations, prior convictions, and authenticity or admissibility of documents. It does not provide a general power to compel pre-trial document production between parties.
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Committal proceedings in the Local Court are characterised as an executive or ministerial function, not a judicial one, following Grassby v R. This distinction has direct consequences for the scope of powers available to a magistrate in that context.
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No implied power exists in the Local Court to order the DPP to produce documents to an accused during committal proceedings, even where the accused argues that non-disclosure threatens trial fairness. Concerns about disclosure unfairness in that setting are matters for the trial judge if and when a trial eventuates.
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An accused in committal proceedings retains the ability to seek access to documents via subpoena under s 59 of the Criminal Procedure Act 1986, provided the subpoena meets the applicable legal requirements, including the need for a legitimate forensic purpose.
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Prematurity can independently defeat a production application: where no brief of evidence has been served, a court cannot determine whether withholding particular documents would result in an unfair trial, regardless of whether the power to order production otherwise exists.
Legislation and Cases Referenced
Legislation
- Bail Act 2013
- Criminal Procedure Act 1986
- Evidence Act 1995
Cases
- Canon v Tahche (2002) 5 VR 317
- Carter v Hayes (1994) 61 SASR 451
- DPP v Shirvanian (1998) 44 NSWLR 129
- Gaffee v Johnson (1996) 90 A Crim R 157
- Grassby v R (1989) 168 CLR 1
- Jackson v Sterling Industries Ltd (1986) 69 ALR 92
- R v Brown [1998] AC 367
- Rice v Chute (1995) 119 FLR 181
- Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307