Director of Public Prosecutions v Voigt (Ruling No. 1)

[2016] VCC 1678

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-16-01298

DIRECTOR OF PUBLIC PROSECUTIONS

v

Ricky VOIGT

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JUDGE:	Sexton
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2016
DATE OF RULING:	9 November 2016
CASE MAY BE CITED AS:	DPP v Voigt (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1678

REASONS FOR RULING NO.1
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Subject:  
Catchwords: Release of subpoenaed documents           
Legislation Cited:     
Cases Cited:            
Ruling:           Application Granted             

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Faller	OPP
For the Accused	Ms Z. Broughton	Victoria Legal Aid

HER HONOUR:

1       This is a ruling in respect of the subpoena to the Department of Health and Human Services issued by the Defence.

2       The law that applies to this subpoena is that as applied to subpoenas in criminal proceedings generally. The accused has a right to file a subpoena concerning issues in the trial, including issues of credibility, and regardless of whether the party ordered to produce the documents is a party or not.[1]  Production of the documents is compelled unless the subpoena is set aside.

[1]R v Mokbel [2005] VSC 410 at [41]

3       On application to inspect the documents, access is usually granted if there is no objection. Objection may be taken on the following bases: first, that the subpoena is invalid and should be set aside, which deals with issues such as whether the subpoena is oppressive, fishing or has no legitimate forensic purpose. The second basis is that the subpoena, while valid, calls for the production of documents which are covered by privilege or public interest immunity, which deals with issues of whether the documents fall into a class of documents prima facie immune from productions, or whether the disclosure of the contents of the documents is against public interest.

4       In this case, the file was produced by the Department of Health and Human Services and objection was taken in the form of the producing party placing in enveloped material described as confidential or protected material, and information indicating that object was taken to the release of the documents within those envelopes, that an opportunity was sought to be heard should the court be considering making an order for release. The Department is not represented today.

5       In respect of the balance of the material in the file, the principles relevant to determining whether they should be released are still to be applied, where there is a formal objection or not.

6       I referred, at the mention hearing, to a case which helpfully sets out the requirements in respect of a subpoena, the case of Messade v Baires Contracting Pty Ltd [2011] VSC 56, and that itself was drawn from a previous ruling given by the same judge, Justice J. Forrest, in a case of the Commissioner of the Australia Federal Police v Magistrates’ Court of Victoria, [2011] VSC 3. In paragraph 6 of Messade it refers to the principles set out by His Honour. Two of those are missing, (f) and 9g), but the full list is found in the second case I referred to, the Commissioner of the Australian Federal Police v Magistrates’ Court.

7       (f) and (g), for the benefit of the parties – (f) is a “mere assertion of bad faith by an applicant, or that something might be found demonstrating bad faith is not enough” and (g) “in criminal proceedings, a more liberal view is taken by a court in respect of the application of the test. Special weight is to be given to the fact if the documents may assist the defence of the accused” and obviously that has relevance in this matter before me, as the principles were outline in a case that was not a criminal case (Messade).

8       In this case, counsel on behalf of the accused submits that there is a legitimate forensic purpose in seeking production, and the factors going to that have been outlined initially at a mention on Monday 7 November, and again in more details this morning.

9       In determining an application for inspection, it is necessary to balance the potential harm done by the production, with the question of whether the administration of justice will be frustrated by withholding the documents. Both aspects require consideration – that is, where there are competing public interest considerations – the question is which of these predominates.

10      The potential harm done by the production and inspection is the release of potentially highly sensitive material brought into court by a compulsory process, and which in this case concerns a vulnerable person who is a child under the care of the Department.

11      The effect on the administration of justice by the withholding of the documents is measured by the effect of such withholding on the ability of the accused to properly meet the case brought against him, and there is of course also the public interest in ensuring a fair trial is held.

12      As I have just noted, it is generally a requirement for a more liberal approach in criminal proceedings[2].  An accused should have the opportunity to inspect any document which may provide an opportunity to pursue a proper and fruitful course in cross-examination[3].

[2]R v Mokbel [2005] VSC 410 at [71] – [75]

[3]R v Mokbel ibid

13      It should also be noted that mere inspection by the lawyers for the accused will not disclose to others what is in the documents.  The documents do not become evidence.  If they are to be used in the trial, then relevance will need to be determined[4] and the possibility arises that if there are issues of confidential communications, then those matters will need to be determined in accordance with the law.

[4]R v Mokbel [2005] VSC 410 at [78]

14      So the principle of the overriding need for a fair trial means the documents must be disclosed to an accused person or to his lawyers if there is good reason to think that the disclosure may be of substantial assistance to the accused person in meeting the case for the prosecution.  That, of course, may involve issues of credibility of prosecution witnesses, in the sense of matters bearing on reliability, such as memory and observation, as well as lack of truth, exaggeration or interest[5].

[5]R v Mokbel [2005] VSC 410 at [81]

15      I have in fact undertaken a very brief inspection of the produced file and confirmed that a great deal of the material is contained in the envelopes.  The material that is not in envelopes unfortunately, does not relate to a period before 2013, I think, so does not relate to the time on the indictment, and does go further in time to the second half of this year, 2016, which is not necessarily relevant to the legitimate forensic purpose. 

16      Despite that, however, I have decided that the file should be produced to the lawyers for the accused to inspect the documents for information relating to the credibility of the complainant and realistically, it is a matter for them and not for me whether there is such material of substantial assistance to them.  In that event, I would expect to be addressed as to seeking to cross-examine in accordance with the credibility rules in the Evidence Act. 

17      So having heard further from Ms Broughton this morning on behalf of the accused, I am satisfied there is a legitimate forensic purpose in seeking access to the file produced by the Department of Health and Human Services. I will make the whole file available except the material in the envelopes, for inspection and the prosecution will be entitled to inspect it also once the defence have seen the material.