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Supreme Court 28 October 2022

R v Abdaly; R v Hosseinishoja (No 1)

[2022] NSWSC 1482

Homicide
CRIMINAL LAW SUBPOENA ISSUED BY PROSECUTOR APPLICATION TO SET ASIDE SUBPOENA WHETHER ACCUSED HAS STANDING HE OBVIOUSLY DOES LEGITIMATE FORENSIC PURPOSE

Citation: R v Abdaly; R v Hosseinishoja (No 1) [2022] NSWSC 1482
Court: Supreme Court of New South Wales
Date: 28 October 2022
Judge: Hamill J

Background

Three men were charged with murder and were partway through a pre-trial hearing when one co-accused pleaded guilty, leaving two accused to face trial. During those proceedings, the Director of Public Prosecutions (DPP) issued a subpoena to the Department of Home Affairs seeking a data extraction from one accused's mobile phone, taken when he departed Australia in 2016. The alleged murder had occurred in 2013.

One of the accused moved to set the subpoena aside by notice of motion. A central factual dispute in the trial concerned the nature and extent of the accused's associations with a motorcycle gang and co-accused, both around the time of the murder and afterwards. The prosecution sought the phone data to shed light on those associations.

The motion was argued on the fourth day of a pre-trial hearing described by Hamill J as "chaotic." His Honour dismissed the motion orally on the day and subsequently published fuller written reasons.

  • Whether the accused had standing to apply to set aside a subpoena issued by the DPP
  • Whether the DPP had a legitimate forensic purpose for the subpoena, or whether it amounted to an impermissible "fishing expedition"

Decision

Standing: Hamill J held that the standing challenge was without substance. Under r 33.1(a) of the Uniform Civil Procedure Rules 2005 (NSW), a subpoena may be set aside on the application of "a party or any person having a sufficient interest." The accused satisfied both limbs: he was a party to the proceedings, and the subpoena directly sought data extracted from his own telephone. Part 75, r 3(g) of the Supreme Court Rules 1970 (NSW) confirms that Part 33 of the UCPR applies to criminal proceedings.

Legitimate forensic purpose: Hamill J noted that setting aside a subpoena requires a finding that it amounts to an abuse of process, citing the Court of Appeal's analysis in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. His Honour approached the "legitimate forensic purpose" test by asking whether it was "on the cards" that the material sought would be relevant to the issues in the trial, consistent with the analysis in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536.

His Honour rejected the accused's submission that the prosecution was engaged in a fishing expedition. One of the live issues at trial was the accused's criminal association with co-accused and the motorcycle gang, and the prosecution sought to establish that association continued well after the murder, as circumstantial support for the accused's participation at the time of it. While the phone was extracted in 2016, it was "on the cards" that it may have contained data going back to 2013, given that people commonly retain handsets for years. The subpoena had a legitimate forensic purpose.

Hamill J also addressed the weight to be given to a Crime Commission assessment that the evidence "may be relevant." He gave that assessment little weight either way: it did not establish legitimate forensic purpose simply because the Crime Commission said so, but equally its diffidence did not deny the subpoena of such a purpose. The Crime Commission lacked full knowledge of the prosecution case and had no role in determining relevance for trial purposes. Admissibility of the material was a separate question not bearing on the forensic purpose analysis.

Orders Made

  • The notice of motion to set aside the DPP's subpoena was dismissed.
  • Access to the material produced under the subpoena was reserved for argument on the following Monday (31 October 2022).

Key Takeaways

  • An accused person has standing under r 33.1(a) of the UCPR to apply to set aside a prosecution subpoena, both as a party to the proceedings and, where the subpoena targets data from their own device, as a person with "sufficient interest."

  • Setting aside a subpoena is not simply a matter of identifying insufficient relevance; it requires a finding that the subpoena amounts to an abuse of the court's process.

  • The "on the cards" standard from Chidgey does not require certainty that the material will assist a party's case. Where there is a live factual dispute about association between an accused and alleged co-offenders, it may readily be satisfied by a subpoena targeting the accused's phone records.

  • Hamill J cautioned against uncritical reliance on the label "fishing expedition." Whether a subpoena crosses that line turns on the specific issues in dispute, not merely on the fact that a party is seeking to inspect material before knowing exactly what it contains.

  • A third party's equivocal assessment of relevance (here, the Crime Commission's) carries limited weight in either direction when the issuing party's own forensic purpose is the subject of scrutiny. Establishing legitimate forensic purpose is the DPP's task, assessed against the actual issues in the trial.

Legislation and Cases Referenced

Legislation
- Uniform Civil Procedure Rules 2005 (NSW), r 33.1(a), Pt 33
- Supreme Court Rules 1970 (NSW), Pt 75, r 3(g)
- Supreme Court Act 1970 (NSW), Sch 3

Cases
- Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
- Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94
- Mann v Commissioner of Police [2020] NSWSC 369
- R v Jenkin (No 2) [2018] NSWSC 697
- Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193
- Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498