Director of Public Prosecutions v Kader (No 4)
[2022] ACTSC 287
•17 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Kader (No 4) |
Citation: | [2022] ACTSC 287 |
Hearing Date: | 14 October 2022 |
DecisionDate: | 17 October 2022 |
Before: | McCallum CJ |
Decision: | (1) Dismiss the application in proceeding dated 13 September 2022; (2) Stand the proceedings over to the Registrar’s criminal directions list at 9am on Thursday 27 October 2022; (3) Grant first access to the accused to any documents produced in response to the subpoena. Until further order, the prosecutor not to have access to those documents. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Subpoena — Application to set aside — Medical documents — whether subpoena serves a legitimate forensic purpose — whether subpoena amounts to a “fishing expedition” — where documents sought likely to be subject to a claim of privilege on the grounds of protected confidences |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 6604(1) |
Cases Cited: | R v BI (No 2) [2016] ACTSC 355 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Smith v Jones(pseudonyms) [2017] NSWSC 980 |
Parties: | Director of Public Prosecutions Imran Kader ( Accused) |
Representation: | Counsel D Swan ( DPP) J Maher ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 200 of 2021 SCC 201 of 2021 |
McCallum CJ:
The accused in these proceedings is due to stand trial for a series of sexual offences alleged to have been committed against a work colleague following a Christmas party in early December 2019. He was tried for those offences at the beginning of this year but the jury could not agree on verdicts and was discharged.
A second trial was due to commence before me on 5 July 2022. However, that trial was vacated after the accused was charged with further offences in circumstances to which I will return, following which he attempted to commit suicide.
The attempted suicide resulted in his being admitted to Calvary Mater Newcastle Hospital. At the request of the Director of Public Prosecutions, the Court has issued a subpoena to that hospital seeking documents relating to the admission.
By application in proceeding dated 13 September 2022, the accused seeks to have the subpoena set aside pursuant to r 6604(1) of the Court Procedures Rules 2006 (ACT). There are three grounds for the application: first, that the subpoena serves no legitimate forensic purpose; secondly, that it constitutes an impermissible fishing exercise; and, thirdly, that it seeks the production of information that is privileged, in that the documents sought are likely to contain protected confidences.
I have concluded that the application to have the subpoena set aside must be dismissed for the following reasons.
The first basis for seeking to have the subpoena set aside is that it does not meet the requirement that there be a legitimate forensic purpose for seeking the documents specified in the schedule. In order to explain my conclusion that the subpoena does satisfy that undisputed requirement, it is necessary to provide further detail as to the chronology of the events I have briefly summarised.
In his first trial, the accused gave evidence concerning the location of particular items in his house. That evidence was directed to supporting a submission that the complainant’s evidence as to the manner in which one of the assaults was alleged to have occurred was unlikely to be true because the area she described was blocked with certain items related to a dog owned by the accused and his ex-wife.
Following the trial, the Australian Federal Police sought to obtain a statement from the accused’s ex-wife. She gave a statement which contradicted his evidence in the trial and in due course that statement was served on him. Following receipt of the statement, the accused made many attempts to contact his ex-wife. She declined to engage with him by phone but said he could send her an email.
Ultimately, the accused sent an email dated 30 June 2022 to his ex-wife which implicated him in a number of ways. First, he acknowledged that he had stated “one or two things” in his evidence in the first trial that were not true, mainly regarding the dog. Secondly, he in effect remonstrated with her for providing a statement to police about that issue, explaining that he gave the evidence knowing that she was “the only person that could possibly contradict” him. Thirdly, he acknowledged that it would be obvious from her statement that he had lied under oath; that his credibility would be gone, and that he would be convicted. He encouraged his wife, having regard to the generic terms in which she had explained the true position to police, to, in effect, support his version. He said “[i]f you turn this email, the fact that I contacted you or the text messages over to the prosecution, I will clearly be convicted.” Finally, he concluded the email saying “[i]t goes without saying that I wanted to speak to you in person to explain all of this without a paper trail, but you clearly knew I was going to ask you something dodgy.”
10. Contrary to his exhortations, the accused’s ex-wife did hand the email and text messages over to police, resulting in his being charged with further offences, being aggravated perjury, perjury, making a false statement in legal proceedings, attempting to pervert the course of justice and attempting to obstruct a legal proceeding. Those matters are currently in the Magistrates Court and are shortly expected to be committed for trial to this Court.
11. Following the decision of the accused’s ex-wife to report the matters to police, the accused was arrested on 2 July 2022 and charged with those further offences. The trial for the sexual offences was, at that time, scheduled to commence on 5 July 2022. As I understand the evidence, it was some time either late on 2 July or on 3 July 2022 that the accused was admitted to Calvary Mater Newcastle Hospital.
12. The prosecution in their written submissions indicated that, based on that chronology, they would contend that it is “on the cards”, as the test has been stated, that the documents sought will address the circumstances of the accused’s attempted suicide and disclose information as to his state of mind or motivation for that act. That submission was said to be supported by the prosecution “understanding” that the attempted suicide was precipitated by the events concerning the accused’s ex-wife reporting her contact with the accused to police. While the prosecution’s understanding to that effect would clearly not be enough to sustain the subpoena, it is the obvious inference to be drawn from the chronology I have recited. It was noted in the prosecution’s written submissions that evidence of an attempted suicide in these circumstances has been held to be capable of being led in the trial as evidence of consciousness of guilt: see R v BI (No 2) [2016] ACTSC 355.
13. For those reasons, I accept the submission that it is on the cards that the documents sought may provide relevant evidence in the trial.
14. The second basis for the objection to the subpoena was that it constitutes what is sometimes described as a “fishing expedition.” That expression is used to indicate circumstances where the person at whose request a subpoena has been issued does not know what forensic fish may be swimming in a pond, but throws a line in all the same, in the hope of catching something helpful.
15. The nature of that objection was considered by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. I sat as a member of the bench in that case and agreed with the judgment of Bell P, as his Honour then was. As his Honour explained, the fact that a party does not and cannot know the particular contents of a document sought does not necessarily indicate that the subpoena constitutes a “fishing expedition”: at [40].
16. In the present case, while the prosecution cannot know what the accused’s medical records will show, there is plainly good reason to infer that the documents surrounding his admission to the hospital may include statements of the kind set out in his email to his ex-wife, generally indicating the fact of his having lied in his first trial, which might indicate a consciousness of guilt. Indeed, his very description of the potential impact of disclosure of that email to police itself plainly might be relied upon as indicating a consciousness of guilt in the trial, and the attempted suicide appears to have been connected with those events. For those reasons, I do not accept that the subpoena constitutes a fishing expedition in the sense in which that term is used as a basis for setting aside a subpoena.
17. The third ground for seeking to have the subpoena set aside was that it would seek documents likely to be protected by a claim for privilege on the grounds of protected confidences. That is the ground which has given me the most reason to pause before refusing the application. Certainly, it is troubling in some respects that the accused’s reasons for being admitted to Calvary Hospital will be the subject of compulsory process and be able to be examined, potentially at least by the Court and, depending on any access orders made, by the prosecution. There is a level of invasion of privacy in taking that step which is troubling.
18. The accused relied on a decision of mine in Smith v Jones(pseudonyms) [2017] NSWSC 980 in which I set aside a subpoena similarly directed to obtaining what were undoubtedly protected confidences. That decision was relied upon as support for the proposition that the fact that a subpoena seeks protected confidences might inform the question whether it should properly be set aside. However, having returned to that decision with some careful reading, the circumstances of that case were clearly distinguishable and the basis for setting aside the subpoena was not confined to the fact that it sought material potentially covered by protected confidences.
19. In the present case, with some hesitation, I have concluded that the question of treatment of protected confidences should more properly be addressed at the stage of considering appropriate access to any documents produced. I do not think it constitutes a basis on its own to set aside the subpoena and I do not think the decision in Smith v Jones stands for that proposition.
20. For those reasons, the application should be dismissed. As submitted by Mr Maher on behalf of the accused, it is clear that he must have first access to the documents produced. Further, if it transpires that the only documents produced are protected confidences, that is an issue which, if there is any dispute about it, can be determined by the Court and which may result in the documents being returned to the hospital without being inspected by the prosecutor.
21. I make the following orders:
(1) Dismiss the application in proceeding dated 13 September 2022;
(2) Stand the proceedings over to the Registrar’s criminal directions list at 9am on Thursday 27 October 2022;
(3) Grant first access to the accused to any documents produced in response to the subpoena. Until further order, the prosecutor not have access to those documents.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 1 May 2024 |
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