Citation: R v Ronald Edward Medich (No. 36) [2018] NSWSC 301
Court: Supreme Court of New South Wales
Date: 12 March 2018
Judge(s): Bellew J
Background
The accused stood trial for murder. The Crown's principal witness was a man who had pleaded guilty to involvement in the same murder and had made extensive admissions to police. The witness's former solicitor was called by the Crown to give evidence, and during cross-examination he indicated he would need to refer to his file notes to answer questions about whether his former client had "protested his innocence" in the period following his arrest.
The defence issued a subpoena to the former solicitor seeking his complete file covering the period from 13 October 2010 (the date of the witness's arrest) to 31 October 2010. The Crown moved to set aside the subpoena, or alternatively to limit its scope to the period ending on 19 October 2010, the date on which the witness signed his first statement to police admitting his involvement in the murder.
The narrow question before Bellew J was whether documents beyond 19 October 2010 should be produced, or whether seeking them amounted to an impermissible fishing expedition.
Legal Issues
- Whether the subpoena, in its full scope from 13 October to 31 October 2010, was supported by a legitimate forensic purpose.
- Specifically, whether there was any proper basis for seeking documents covering the period after the witness had already made formal admissions to police on 19 October 2010.
- Whether the fact that the Crown had previously issued a subpoena using the same date range could, of itself, justify the accused's subpoena adopting the same period.
Decision
Bellew J accepted that cross-examining the former solicitor about whether the witness had asserted his innocence after arrest was, in principle, a legitimate and relevant line of questioning. The Crown did not dispute that. The dispute turned entirely on whether production should extend beyond 19 October 2010.
His Honour applied the two-limb test for legitimate forensic purpose drawn from R v Saleam (No 2): the party seeking production must identify the purpose, and must establish that it is "on the cards" that the documents will assist their case. The defence argued it would be "highly relevant" if the witness had simultaneously told police he was guilty while continuing to assert innocence to his solicitor.
Bellew J found this amounted to fishing. There was no evidence at all to suggest the witness had maintained a contrary position to his solicitor after 19 October 2010. To the contrary, the solicitor was present when the witness made his admissions on that date, and continued to act for the witness through to sentencing. His Honour considered it would be extraordinary, and highly unlikely, for the solicitor to have acted on two diametrically opposed sets of instructions at the same time.
His Honour also rejected the argument that the Crown's earlier use of the same date range provided independent justification for the defence subpoena. The legitimacy of a subpoena, including the existence of a legitimate forensic purpose, is not determined solely by the period of production sought.
Orders Made
- The former solicitor is excused from any obligation to produce documents under the subpoena issued on 8 March 2018 in its original form.
- The former solicitor may discharge his obligation under the subpoena by producing all file notes, diary notes, conference notes, and correspondence relating to his representation of the witness between 13 October 2010 and 19 October 2010 (inclusive).
Key Takeaways
- A subpoena for production in criminal proceedings requires both identification of a legitimate forensic purpose and a basis for concluding it is "on the cards" that the documents will assist the issuing party's case.
- Fishing expeditions remain impermissible: it is not sufficient to seek documents in order to discover whether they might be useful.
- No evidence existed to suggest the witness had maintained inconsistent positions with his solicitor after making formal admissions to police, and the Supreme Court held that the absence of any such foundation was fatal to extending the subpoena's scope.
- The fact that the opposing party had previously issued a subpoena covering the same date range does not, without more, establish a legitimate forensic purpose for a subpoena seeking the same period.
- In trimming the subpoena to the period ending 19 October 2010, the court drew a clear line at the point where the witness's admissions were made, noting that the solicitor's presence at that moment made any later inconsistency highly implausible.
Legislation and Cases Referenced
Cases:
- Alister v R (1984) 154 CLR 404; [1984] HCA 85
- Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- R v Baladjam & Ors (No 29) [2008] NSWSC 1452
- R v Saleam (No 2) [1999] NSWCCA 86
Legislation: No specific legislation was cited in the judgment.