Citation: R v Elefterios [Terry] FANTAKIS [2018] NSWSC 156
Court: Supreme Court of New South Wales
Date: 15 February 2018
Judge(s): Wilson J
Background
The accused stands charged with the murder of Elisha Karmas on 11 August 2011. In January 2018, shortly before trial, the accused served a 42-paragraph subpoena on the Commissioner of Police seeking a considerable volume of material relating to the police investigation, including surveillance logs, listening device product, forensic examination records, and other investigative documents.
Many paragraphs of the subpoena were resolved by agreement between the parties or through earlier production. However, six paragraphs remained in dispute, with the Commissioner of Police applying to have each set aside as either an abuse of process or lacking a legitimate forensic purpose.
The Court was asked to rule on paragraphs 7, 8, 11, 12, 17 and 35 of the subpoena.
Legal Issues
- What legal test applies when a party seeks production of documents under subpoena?
- Does mere relevance of the material sought satisfy the test for production?
- For each of the six disputed paragraphs, had the accused established a legitimate forensic purpose and that it was "on the cards" the documents would materially assist his case?
Decision
The applicable legal test: Before production is ordered or access granted to subpoenaed material, the party seeking access must satisfy a two-step test: first, identify a legitimate forensic purpose for the material; and second, establish that it is "on the cards" the documents would materially assist the case (at [5]-[9]). Mere relevance is not enough, and a subpoena cannot be used as a "fishing expedition" to search for material that might prove useful (at [7]-[8]).
Paragraphs 7 and 8 (surveillance and listening device materials): The accused sought additional surveillance and listening device records to challenge the legitimacy of electronic surveillance evidence for specific dates in 2011 and 2012. The Court found that the relevant listening device product and surveillance logs had already been provided, and nothing in that material raised a reasonable basis to doubt the authenticity of the evidence (at [14], [21]). The accused was, in effect, asking to examine further material in the hope of finding something useful. That hope did not satisfy the requirement that it be "on the cards" something of use would emerge (at [15], [21]-[22]). Both paragraphs were set aside.
Paragraphs 11 and 12 (vehicle stop materials): These paragraphs related to a vehicle stop of the co-accused on 5 July 2011 and sought material beyond what had already been produced. The accused's belief that more material existed appeared to rest on suspicion of police rather than any evidential foundation (at [26]). The Court accepted that a forensic purpose could be identified in the abstract, but the accused had not established it was reasonably possible the Commissioner held further material that would assist his case (at [26], [31]). Both paragraphs were set aside as calls based on hope rather than logic (at [26], [31]).
Paragraph 17 (forensic examination of the crime scene): The accused sought forensic examination records, including crime scene notes and working documents, relating to premises at the centre of the Crown case. The Commissioner conceded that photographs should be produced and agreed to provide them. Wilson J held that the accused had met the two-step test for the remaining material: analysis of the crime scene was an important part of the Crown case, and access to the primary working documents from which crime scene reports and statements were likely derived could allow the accused to compare that evidence against its foundation (at [36]-[37]). Production was ordered. Paragraph 35 (state of mind materials): The accused sought material to explore the state of mind of persons relevant to the Crown's murder case. The Court found the paragraph as drafted was too broadly framed and would capture documents having no bearing on the stated forensic purpose (at [42]). Further, the accused already held witness statements from the key individuals identified as relevant, and no basis was established that additional material would materially assist his case (at [43]-[44]). This paragraph was set aside.
Orders Made
- Paragraphs 7, 8, 11, 12 and 35 of the subpoena dated 15 January 2018 were set aside.
- Production of material encompassed by paragraph 17 was ordered by 10am on 21 February 2018.
- Proceedings and the call on subpoena for paragraphs 10, 13, 14, 19, 21, 22, 27 and 31 were adjourned to 19 February 2018.
- Peremptory production was ordered for material in paragraph 4 (as redacted) and paragraph 25.
- Both parties were granted photocopy access to material produced by the Commissioner on the day or before 19 February 2018.
Key Takeaways
- A party seeking production under subpoena must satisfy a two-step test: identify a legitimate forensic purpose and establish it is "on the cards" the documents will materially assist the case, as affirmed by reference to Alister v R and Attorney-General (NSW) v Chidgey (at [5]-[9]).
- Mere relevance of documents to the proceedings is insufficient to justify production; a subpoena cannot be deployed as a broad search for material that might prove useful if examined (at [7]-[8]).
- Where relevant material has already been provided and nothing in it raises a reasonable basis to question the authenticity of the evidence, a further call for similar documents is likely to be characterised as a fishing expedition (at [14], [21]).
- Suspicion of police conduct, without more, does not establish that it is on the cards that additional documents exist and would assist the accused's case (at [26]).
- Access to crime scene working documents and notes was ordered where forensic analysis formed a significant part of the Crown case, because comparison between primary records and derived evidence could materially assist the accused's defence (at [36]-[37]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404
- Attorney-General (NSW) v Dylan Chidgey [2008] NSWCCA 65
- Carroll v Attorney-General (NSW) (1993) 70 A Crim R at 162