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Court of Criminal Appeal 28 August 2026

RS v Commissioner of Police (NSW)

[2026] NSWCCA 128

Other
CRIMINAL PROCEDURE SUBPOENAS

Citation: RS v Commissioner of Police (NSW) [2026] NSWCCA 128
Court: Court of Criminal Appeal
Date: 28 August 2026
Judge(s): Mitchelmore JA; Chen J (principal judgment); Sweeney J

Background

The applicant was charged in September 2024 with multiple federal offences under the Criminal Code Act 1995 (Cth) relating to child abuse material found on his mobile phone when he returned from Thailand in May 2024. He pleaded not guilty. In May 2026, the Commonwealth Director of Public Prosecutions (CDPP) disclosed to the applicant, in fulfilment of its statutory and common law obligations, material relating to separate criminal charges against his adult son, RJ. Those charges concerned alleged sexual offending by RJ against his own daughter.

Following that disclosure, the applicant obtained leave from the District Court to issue a subpoena to the Commissioner of Police seeking the brief of evidence and COPS event records in RJ's proceedings. The Commissioner moved to set aside the subpoena on the sole ground that the applicant had not demonstrated a legitimate forensic purpose. Ryan DCJ agreed and set the subpoena aside on 22 May 2026, which led to the applicant's trial being vacated before it commenced.

The applicant sought leave to appeal under section 5F(3) of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals. The sole ground was that Ryan DCJ erred in finding no legitimate forensic purpose for the subpoena.

  • Whether the material sought by the subpoena had a "legitimate forensic purpose" that would justify its production
  • Whether Ryan DCJ correctly characterised the forensic purpose the applicant advanced
  • Whether the CDPP's prior disclosure of the related material was a relevant starting point in assessing forensic purpose
  • Whether the similarities between the alleged offending by the applicant and by RJ were relevant to the question of forensic purpose

Decision

The single ground of appeal (mischaracterisation of forensic purpose):

Chen J (with Mitchelmore JA and Sweeney J agreeing) found that Ryan DCJ had mischaracterised the forensic purpose the applicant was advancing. Her Honour framed it as establishing that RJ had a "sexual interest in child abuse material," whereas the actual purpose was to establish that RJ had a "sexual interest in children." This distinction was material because the applicant's case at trial appeared to involve the question of who had access to and was responsible for the material found on his phone, and RJ's alleged conduct towards young girls was directly relevant to that.

Failure to treat CDPP's disclosure as the starting point:

The court found that Ryan DCJ failed to give proper weight to the significance of the CDPP's own disclosure. The fact that the prosecuting authority had itself disclosed the RJ material in accordance with its disclosure obligations was, the court held, a circumstance that should have been the starting point of any consideration of legitimate forensic purpose. Ignoring or underweighting that disclosure amounted to an error.

Failure to consider the similarities between the two sets of alleged offending:

Ryan DCJ also failed to consider the connection between the nature of the applicant's alleged offending and RJ's alleged offending. Both involved a sexual interest in young girls. The court found this similarity was plainly relevant and that failing to engage with it constituted a further error. The material sought possessed obvious evidentiary value and could well be vital to the defence the applicant intended to run at trial.

Result:

The court granted leave to appeal, allowed the appeal and set aside the order of Ryan DCJ. The Commissioner's Notice of Motion to set aside the subpoena was dismissed. As no issue of oppressiveness had been raised by the Commissioner, the court ordered production of the subpoenaed material by 4 September 2026.

Orders Made

  • The Commissioner of Police's Notice of Motion filed 14 May 2026 to set aside the subpoena was dismissed
  • The Commissioner of Police was ordered to produce the material sought in the subpoena filed 11 May 2026 by 4 September 2026, or at such further time as permitted by agreement of the parties or order of the District Court

Key Takeaways

  • A prosecuting authority's voluntary disclosure of related material, made in compliance with statutory and common law obligations, is a highly relevant starting point when a court assesses whether a subpoena has a legitimate forensic purpose.
  • Mischaracterising the forensic purpose a party actually advances constitutes a legal error capable of vitiating a decision to set aside a subpoena; the purpose must be accurately identified before it can be evaluated.
  • The Court of Criminal Appeal confirmed that the enquiry into legitimate forensic purpose should not be approached in an unduly restrictive manner, and that a party is entitled to build up an "evidentiary mosaic," a principle articulated in civil proceedings that provides practical guidance in the criminal context.
  • Where a subpoena is challenged solely on the ground of legitimate forensic purpose, and the producing party raises no separate argument about oppressiveness, a court that dismisses the forensic purpose argument has no remaining basis to withhold production.
  • Uncertainty remains in NSW criminal proceedings about the precise test for legitimate forensic purpose following the Court of Appeal's decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021), with the Court of Criminal Appeal again noting the unresolved question without definitively settling it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW)

Cases
- Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94
- Cornwell v R [2010] NSWCCA 59
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24
- Lakatoi Universal Pty Limited v Walker [1998] NSWSC 470
- R v Keane [1994] 1 WLR 746
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Saleam [1999] NSWCCA 86
- Sayer-Jones v The King [2024] NSWCCA 73
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145
- Zakaria v The King [2026] NSWCCA 98