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Attorney-General (NSW) v Chidgey

Attorney-General (NSW) v Chidgey

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Case Copied 28 March 2008 51 min read

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New South Wales
Court of Criminal Appeal

CITATION: Attorney General for New South Wales v Dylan CHIDGEY [2008] NSWCCA 65

HEARING DATE(S): 7 February 2008

JUDGMENT DATE:
28 March 2008

JUDGMENT OF: Beazley JA at 1; James J at 90; Kirby J at 91

DECISION: 1. Appeal allowed
2. Set aside the determination of the Magistrate, his Honour G Cocks, made on 21 July 2006, dismissing the application to set aside paragraph 3 of the schedule to the subpoena issued on 24 May 2006
3. Strike out paragraph 3 of the subpoena.

CATCHWORDS: CRIMINAL LAW – Criminal Appeal Act 1912, s 5F - appeal against interlocutory judgment or orders – statutory right of appeal of Attorney General and DPP against interlocutory judgment or orders - PROCEDURE – subpoena for production - legitimate forensic purpose – whether it is ‘on the cards’ that documents will materially assist case

LEGISLATION CITED: Criminal Appeal Act 1912, s 5F
Criminal Procedure Act 1986, s 227
Director of Public Prosecutions Act 1986, s 8
Drug Misuse and Trafficking Act 1985, ss 25(1), 25A(1)
Evidence Act 1995, s 138
Interpretation Act 1987, s 33
Law Enforcement (Controlled Operations) Act 1997, ss 3, 5, 6, 7, 8, 13, 13A, 15, 16, 20, 21, 22, 23
Local Courts (Criminal and Applications) Procedure Rule 2003, cl 47

CATEGORY: Principal judgment

CASES CITED: Alistair v R [1983] HCA 45; (1984) 154 CLR 404
Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8
Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1
Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 315, June 2005, unreported)
Carroll v Attorney General for New South Wales (1993) 70 A Crim R 162
Commissioner of Police v Tuxford [2002] NSWCA 139
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
DPP v Selway [2007] VSC 244
Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; (2005) 2 DDCR 744
Fitzgerald v Magistrates’ Court of Victoria and Others [2001] VSC 348; [2001] 34 MVR 448
Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233
House v The King (1936) 55 CLR 499
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Jovanovski v R [2008] NSWCCA 9
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249
Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 Propend Finance Pty Ltd v Australian Federal Police Commissioner (1994) 72 A Crim R 278
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Robinson (1996) 89 A Crim R 42; (1996) 129 FLR 409
R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406
R v Saleam [1999] NSWCCA 86
R v Taylor

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCCA 65
Decision Date: 28 March 2008

CaseChat Overview and Summary

In the case of Attorney-General (NSW) v Chidgey, the Attorney General of New South Wales appealed against an interlocutory order made by the Local Court that required the production of documents to the respondent. The appeal was concerned with the statutory right of appeal under section 5F of the Criminal Appeal Act 1912 and the requirements for issuing a subpoena for document production. The Local Court had ordered the production of documents to the respondent, and the Attorney General argued that the order was not justified. The Court of Appeal was required to determine the scope of the Attorney General's right of appeal and the criteria for issuing a subpoena for document production.

The central legal issue was whether the Attorney General had a statutory right to appeal against the interlocutory order. The Court confirmed that the Attorney General had such a right under section 5F(2) of the Criminal Appeal Act 1912. The Court also had to determine the criteria for issuing a subpoena for document production. The Court of Appeal held that a party seeking document production must satisfy a two-step test: (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist the case. The Court found that the respondent had not satisfied either of these criteria.

The Court of Appeal held that the test for issuing a subpoena for document production was not satisfied because the respondent had not identified a legitimate forensic purpose beyond a general proposition that they were entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A), and "to discover whether he has a case at all." The Court held that mere relevance was not sufficient to establish a legitimate forensic purpose. The Court also found that it was not "on the cards" that the documents would materially assist the respondent's case. Accordingly, the Court allowed the appeal and quashed the interlocutory order.

The Court of Appeal quashed the interlocutory order of the Local Court and remitted the matter to the Local Court with directions. The Court held that the Attorney General had a statutory right to appeal against the interlocutory order and that the respondent had not satisfied the criteria for issuing a subpoena for document production. The Court found that the respondent had not identified a legitimate forensic purpose beyond a general proposition that they were entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A), and "to discover whether he has a case at all." The Court also found that it was not "on the cards" that the documents would materially assist the respondent's case.

Orders