Gary Sloan (a pseudonym) [1] v Director of Public Prosecutions and Chief Commissioner of Police
[2016] VSCA 104
•13 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0009
| GARY SLOAN (A PSEUDONYM) [1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| and | |
| CHIEF COMMISSIONER OF POLICE | Intervenor |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Applicant.
---
| JUDGES: | PRIEST, SANTAMARIA and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2016 |
| DATE OF JUDGMENT: | 13 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 104 |
| JUDGMENT APPEALED FROM: | R v [Sloan] (Unreported, County Court of Victoria, Judge Mullaly, 26 November 2015, 17 December 2015) |
---
PRACTICE AND PROCEDURE – Criminal proceeding – Interlocutory appeal – Subpoena directed to Chief Commissioner of Police – Whether legitimate forensic purpose – Whether fishing – Whether claim for public interest immunity capable of waiver – Finding that no legitimate forensic purpose in certain documents – Review of judge’s refusal to certify pursuant to Criminal Procedure Act 2009, s 296 – Trial judge refused to certify under s 295 – Application for review refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In Person | |
| For the Respondent | Mr Prosecutor | Mr J Cain, Solicitor for Public Prosecutions |
| For the Intervenor | Counsel | Victorian Government Solicitor’s Office |
PRIEST JA
SANTAMARIA JA
KYROU JA:
Introduction
Fragmentation of criminal proceedings generally is undesirable.
Interlocutory appeals in trials on indictment delay the trial, and may occasion miscarriages of justice in ways unrelated to the ruling sought to be impugned. Thus, for example, fragmentation of the processes of a criminal trial may cause personal stress to the accused and witnesses; lead to the dimming of the memories of witnesses; and may result in undesirable delay between the commission of criminal conduct and the administration of punishment.[2]
[2]See R v Elliott (1996) 185 CLR 250, 257.
This is the third time that the applicant has sought to invoke this Court’s jurisdiction. The present two applications — which we will later describe in more detail — are an application under s 296 of the Criminal Procedure Act 2009 (‘CPA’) to review the refusal of a judge of the County Court to certify that an interlocutory decision is of sufficient importance to justify it being determined on an interlocutory appeal; and — if that application succeeds — an application for leave to appeal the interlocutory decision.
For the reasons that follow, we refused the application for review of the refusal to certify. The application for leave to appeal against the interlocutory decision thus falls away.
Although the applicant is unrepresented, it nevertheless needs to be understood that applications to challenge interlocutory decisions should not lightly be brought. They will not lightly be entertained by this Court. As Priest JA said in Todd:[3]
… it should be repeated that, save for the unusual case — where, for example, the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial — fragmentation of the trial process by an application for leave to appeal against an interlocutory decision, is undesirable.[4] The fetters placed on appellate intervention at an interlocutory level emphasise a legislative intention that the authority of a trial judge ought not lightly be interfered with.[5] Thus, although one must be cautious not to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted; and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected.[6]
[3]Todd (a Pseudonym) v The Queen [2016] VSCA 29, [39].
[4]DPP v Pace (a Pseudonym) [2015] VSCA 18, [24]–[25] (Priest and Beach JJA).
[5]Ibid.
[6]Ibid.
In deciding an earlier application brought by the applicant in this Court, it was observed that the ‘pre-trial process has already assumed a tortuous complexity which strongly favours its speedy progress and resolution’.[7] Unhappily, the aspiration of a speedy resolution of the pre-trial issues has not been realised. But the applicant must understand that — subject, of course, to the interests of justice and the fairness of the trial not being unacceptably compromised — he cannot be permitted incessantly to agitate pre-trial issues, particularly by attempting to invoke the jurisdiction of this Court with respect to matters which are not suitable vehicles for an interlocutory appeal. As the Court previously observed:[8]
… Considerable flexibility must be reserved to a trial judge to manage pre-trial proceedings involving a self-represented accused. In a very real sense the management of pre-trial matters will not be fully resolved until the judge determines that the matter is ready to proceed to trial and the accused pleads not guilty on arraignment in the presence of the jury panel. Moreover, some rulings may be provisional. They may (as the judge has stated to the applicant) require revision as the trial proceeds. It would not be in the interests of the applicant, in the interests of justice, or in the interests of the community if this Court sought to supervise every intermediate step taken prior to trial by the managing judge in a case such as this. Such a course would effectively derail any prospect of a reasonably expeditious outcome to the trial process.
[7]Sloan (a Pseudonym) v The Queen [2015] VSCA 240R, [11] (Hansen, Osborn and Priest JJA).
[8]Ibid [22] (emphasis added).
The applications
On 26 November 2015, in the County Court, Judge Mullaly delivered a ruling concerning subpoenas issued by the applicant directed to the Chief Commissioner of Police (‘the subpoena ruling’). The applicant wishes to challenge aspects of that ruling. Thus, on 17 December 2015, he asked Judge Mullaly to certify that the ruling was of sufficient importance to justify it being determined on an interlocutory appeal. His Honour refused to do so (‘the certification ruling’).
As we have mentioned, this Court previously has dealt with two applications brought by the present applicant. It has done so on the understanding that an indictment has been filed in the County Court.[9] At the conclusion of oral argument on the merits of the present applications, however, the Court was informed by counsel for the respondent that an indictment is yet to be filed. Our present understanding is that at some future time the prosecution proposes to file an indictment in the County Court so as to charge the applicant with arson (eight charges — charges 1, 2, 3, 4, 5, 7, 8 and 9) and reckless conduct endangering life (one charge — charge 6).
[9]Cf Sloan (a Pseudonym) v The Queen [2015] VSCA 64R, [1]; Sloan (a Pseudonym) v The Queen [2015] VSCA 240R, [1].
Notwithstanding that no indictment has been filed,[10] since March 2014, management of a host of pre-trial matters[11] has been undertaken by Judge Mullaly.[12], [13]
[10]See Criminal Procedure Act 2009, s 159. See also R v Parker [1977] VR 22.
[11]See Criminal Procedure Act 2009, s 199.
[12]No question was raised before us as to the jurisdiction of a judge of the County Court to hear and determine pre-trial issues absent an indictment having been filed, but we note that various provisions of the Criminal Procedure Act 2009 arguably contemplate that necessity. For example, see s 199(1)(c); s 193. See also s 180 and s 210.
[13]Section 391A of the Crimes Act 1958, which was repealed by the s 422(2)(a) of the Criminal Procedure Act 2009, made clear that, ‘before the impanelling of a jury for the trial’, a judge had jurisdiction to entertain the kinds of pre-trial issues that have been (and continue to be) determined by the judge in this case only ‘[w]here an accused person is arraigned on indictment or presentment’.
At the risk of repetition, the present applications represent the third occasion upon which the applicant has sought to challenge pre-trial rulings in this Court. In each previous instance, the applicant contended that Judge Mullaly had, in light of the manner in which his Honour dealt with the applicant in pre-trial hearings and by his pre-trial rulings, demonstrated ostensible bias. On 17 April and 8 September 2015, however, this Court refused leave to appeal the decisions by the judge to refuse to recuse himself for apprehended bias allegedly arising out of his conduct in managing pre-trial matters.[14]
[14]Sloan (a Pseudonym) v The Queen [2015] VSCA 64R (Ashley, Osborn and Priest JJA); Sloan (a Pseudonym) v The Queen [2015] VSCA 240R (Hansen, Osborn and Priest JJA).
Following further extended pre-trial hearings, the applicant, as we have said, sought to challenge the subpoena ruling. He also sought to challenge the certification ruling.
At the commencement of the hearing of the applications in this Court on 5 May 2016, the Court — despite the applicant’s objection to the Court doing so —granted an application by the Chief Commissioner for leave to intervene. Given that he is not (and cannot be) a party to the present applications, but given further his interest in the subpoena ruling, it was proper to grant the Chief Commissioner leave to intervene.[15]
[15]Watkins (a pseudonym) & Mann (a pseudonym) v Commissioner for the Australian Federal Police and DPP (Vic) [2015] VSCA 321 (Osborn and Priest JJA).
On 5 May 2016, the Court also entertained an application by the applicant for an adjournment. He advanced a variety of reasons for seeking a postponement of the hearing of his applications, none of which the Court considered to be of substance. An adjournment was thus refused.
Further, having heard oral argument, the Court was of the view that the application under s 296 of the CPA to review the refusal to certify was without merit. The application was refused, and the Court indicated that it would later provide reasons for that decision. These are our reasons.
Statutory regime governing the applications
In determining the application concerning the certification ruling, by s 296(4) of the CPA the Court is required to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’. Since the interlocutory decision ultimately sought to be impugned does not concern the admissibility of evidence, by virtue of s 297(1) the Court could give leave to appeal only if satisfied ‘that it is in the interests of justice to do so, having regard to’ —
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i)render the trial unnecessary; or
(ii)substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c)any other matter that the court considers relevant.
The grounds of the applications
Common grounds were advanced in support of the application for review, and of the application for leave to appeal against the interlocutory decision. They are:[16]
1. That the matter was of sufficient importance to the fair and proper running of the trial;
2. The Ruling is of sufficient doubt to warrant certification (including grounds below);
3. His Honour erred to find that there were lawful grounds to re-litigate Legitimate Forensic Purpose (“LFP”) on the subpoena (and/or there is sufficient doubt in that matter);
4. In the alternative, even if the subpoena could be re-litigated for LFP the judge erred to find there was no Legitimate Forensic Purpose regarding documents under schedule #8 (and/or there is sufficient doubt in that matter). This point is two-fold. Firstly that His Honour erred in law regarding the legal test to be applied to the assessment of whether a LFP had been demonstrated (and/or there is sufficient doubt in that matter). Secondly, His Honour erred in assessment in terms of weight as to whether there was a legitimate forensic purpose demonstrated and the importance of the MO evidence (and/or there is sufficient doubt in that matter);
5. All issues, including peripheral issues, regarding provision of the documents as per schedule #8 of the subpoena;
6. The un-represented accused was denied procedural fairness due to his response being cut off due to court bookings (time limitations) and the certification hearing being held without advance notice or official time-tabling of this matter after loss of computer and legal papers for a period of not less than 2 weeks prior to the hearing itself;
7. Whether the un-represented accused was required to make the appeal via the interlocutory appeal system was necessary for a subpoena and production of documents.
[16]Grammar, syntax and punctuation are as in original.
Essential chronology
With respect to some of the charges that the applicant faces, the prosecution seeks to rely on tendency and coincidence evidence.
The applicant caused two subpoenas to produce documents, dated 10 June 2014 and 3 July 2014 respectively, to be issued out of the County Court directed to the Chief Commissioner.
For present purposes, the relevant items in the schedules were:
· item 1 (the affidavit in support of tracking device warrant);
· item 3 (certain photographs taken during surveillance);
· item 4 (the Operation Navarre investigation file); and
· item 8 (photographs and written descriptions of arson crime scenes in various identified cases).
Subsequently, with respect to item 8, the applicant indicated to the judge that he wanted only crime scene photographs, and the LEAP[17] Reports with notes on ‘modus operandi’, in relation to identified fires. As a result, the Chief Commissioner indicated that he was content to proceed on the hearing of the objections to the subpoenas as though item 8 of the subpoenas only sought those documents.
[17]Law Enforcement Assistance Program.
It is convenient to set out the essential history of the proceedings in the County Court bearing on the subpoenas.
On 8 August 2014, the Chief Commissioner first appeared through counsel at a directions hearing. In the result, the return date for the subpoenas was extended to 1 September 2014, and the judge gave certain other directions.
Thus, on 12 August 2014, pursuant to directions given by the judge, the Chief Commissioner filed a table which indicated that there were certain objections to documents which fell within item 1 and item 3 of the subpoenas. With respect to remaining items, the table recorded that the documents sought would be provided ‘if in existence’.
On 22 August 2014, the Chief Commissioner filed an outline of submissions in support of the identified objections.
When the matter returned to court on 1 September 2014, the Chief Commissioner was again represented by counsel. The judge heard argument on objections to item 1 and item 3. In the result, the judge upheld the objection to item 1 on the basis that no legitimate forensic purpose had been identified, but did not uphold the Chief Commissioner’s objections in relation to item 3. The return date for the subpoenas was then again extended to 9 September 2014.
Ten months later, on 24 June 2015, following discussion between the judge, the applicant and counsel for the prosecution, concerning ongoing discovery, the Chief Commissioner again appeared represented by counsel. An issue had arisen as to whether disclosure of certain documents encompassed by the previous subpoenas, but which had not been the subject of argument or objection on 1 September 2014, could be resisted. Directions were made accordingly for the filing of submissions in relation to potential further objections to the subpoenas.
On 25 June 2015, the Chief Commissioner filed submissions in support of further objections to the subpoenas.
Later, over three days — 19 and 20 October, and 6 November 2015 —the Chief Commissioner through counsel made submissions in support of further objections to item 4 and item 8 of the subpoenas.
On 26 November 2015, the judge delivered the subpoena ruling. In essence, the judge held that the Chief Commissioner was entitled to raise the new objections that had been advanced, and he struck out item 4 and item 8(a), (b), (c), (d) and (g). The judge did not uphold the Chief Commissioner’s objections to item 8(e) and 8(f), but considered that those items should be restricted only to production of the relevant ‘photographs and entries in the LEAP database that raise or deal with a topic of a pattern or modus operandi in the way the fire was lit or the circumstances of the fire’.
As previously mentioned, on 17 December 2015, the judge refused to grant certification with respect to the subpoena ruling for the purposes of an interlocutory appeal, holding both that the ruling was not attended by sufficient doubt, and that it was not of sufficient importance to the trial, to justify its being determined on an interlocutory appeal.
The items in the subpoena in contention
Before proceeding further, as earlier observed, the items in the subpoena which are in contention for the purposes of the present applications are item 8 (a), (b), (c), (d) and (g) (but not (e) and (f)) of the subpoena dated 10 June 2014. It is convenient to set out the whole of item 8:[18]
[18]Grammar, syntax and punctuation are as in original.
Photographs and any written descriptions of arson crime scenes in the following cases:
(a) Fire at Courtenay Street in North Melbourne around the 5th to 6th of January 2012 (date may be slightly inaccurate). Fire investigated by Mark DRANE. Lit in early hours of the morning.
(b) 16 Woodlands Court Malvern East on 27 August 2010.
(c) Fire mentioned in notes at 29/9/2010 at approximately 11:37 in Detective Stephen WALLACE’S written diary notes from the case relating to Operation NAVARRE regarding fire.
(d) Fire at 26 Glenwood Drive, Greensborough. This was listed at Page 12 of written notes of Special Agent Jamie FLETCHER of the Australian Federal Police.
[(e)141 Warragul HWY (may be 141 Warragul Road) Hughesdale. Again from diary notes of Detective Stephen WALLACE at approximately 13/9/2010.
(f) Photos and any written descriptions of Modus Operandi for all the arson counts laid against the [applicant] by WALLACE in relation to Operation NAVARRE which were later withdrawn.]
(g) Crime-scene photos and any written descriptions of Modus Operandi for fires from the case CW v The Queen [2010] VSCA 288. These fires lit in June 2002 at Roberts Carpet Court Rosebud, Rosebud Carpet Court, and K&N Norris Real Estate.
(h) CCTV video of Glen Waverley Police Station showing the accused’s vehicle WOT-962 on the 3rd of February 2011 from the time it arrived until (and including) the time it was formally searched in the presence of the accused.
Although none of its items are any longer in contention, we note that the schedule for the subpoena dated 3 July 2014 was as follows:
1.Copy of the affidavit used by Steven WALLACE (31984) to obtain a warrant (dated 11 December 2013 by Magistrate J POPOVIC; Court ref 4365/13) for Commonwealth Bank of Australia records allegedly belonging to [the applicant].
2.Also a copy of any further warrant(s) and/or affidavit(s) for further warrant(s) related to the obtaining of the banking documents of [the applicant] by Steven WALLACE (31984) regarding Operation NAVARRE.
Overview of the prosecution and defence cases at trial
There are, as we have said, eight charges of arson (charges 1 to 5, and 7 to 9) and one related charge of conduct endangering life (charge 6), on the proposed indictment.
The prosecution alleges that fires were lit at five separate properties. Three properties were damaged by fire on two separate occasions. Thus, charge 1 and charge 9 both involve damage by fire to the Croxley Child Care Centre, Syndal; charges 2 and 5 both involve damage to the church presbytery of St Mary’s Catholic Church, East St Kilda; and charges 3 and 4 involve damage to the Mount Waverley Police Station. Of the remaining arson charges, charge 7 involves damage to St Oswald’s Anglican Church, Glen Iris; and charge 8 involves damage to a shop, Tanner’s Swiss Patisserie, Blackburn Road, Syndal.
It is the prosecution’s case that the one arsonist — the applicant — is responsible for all of the fires. The applicant denies that he is the arsonist. Hence, the principal issue in the trial is whether the prosecution can prove beyond reasonable doubt that the accused lit all (or any) of the fires. Further, although, as we understand it, there is no dispute that the fires occurred, with respect to some of the fires the prosecution may have to prove the particular fire was deliberately lit (as opposed to being an accidental occurrence).
To prove that the applicant is the arsonist, the prosecution relies on circumstantial evidence from surveillance of the accused, and on a tracking device attached to his car at the time of the occurrence of the last five fires. If this evidence were to be accepted, it places the accused in the vicinity of the fires at or about the time of their being lit.
With respect to the first three fires, there is no surveillance or tracking device evidence. Charges 1, 2 and 3 relate, however, to fires at buildings which were again the subject of damage by fire, on occasions when there is some surveillance or tracking device evidence. With respect to charge 7 — which relates to St Oswald’s Anglican Church — the prosecution also relies on DNA found on a bottle of petrol located at the scene (the petrol having been used as an accelerant), an analysis of which does not exclude the applicant as the source (and, indeed, suggested that he is 54,000 times[19] more likely to be the source of the DNA within the relevant biological sample than if the DNA had originated from another person chosen at random from the Australian Caucasian population).
[19]The Court was informed during the hearing of the applications that this estimate has, as a result of a different form of analysis being used, been revised to ‘46,000 times’ more likely. That detail has no bearing on the resolution of the present applications.
Coincidence evidence is also relied upon. The prosecution contends that some features of the manner in which the fires were lit are sufficiently similar that, when combined with the circumstantial evidence of surveillance and tracking devices, together with other evidence of things found at the applicant’s premises, the irresistible conclusion is that the fires are all the handiwork of the applicant. (Further, there is other evidence that the prosecution relies upon which may be characterised as tendency evidence.) Coincidence reasoning — relying on relevant similarity (or modus operandi) — plays a significant role in the prosecution case, a central feature of which is the circumstantial evidence flowing from a tracking device and surveillance placing the applicant at or near the fires at relevant times.
The applicant denies that he is the arsonist. He challenges the admissibility of various pieces of evidence, and challenges the use of the evidence for coincidence or tendency purposes. Moreover, he desires a separate trial for the different charges relating to each of the fires.[20]
[20]Presumably, such an application can only be made once the indictment is filed. See s 193(1) of the CPA.
The subpoena ruling
Before the judge, the applicant argued that the Chief Commissioner should be prevented from raising objections not previously relied upon. As to this aspect, in the subpoena ruling the judge said:
Considering all matters put by counsel for the Chief Commissioner and the considered response and arguments of Mr [Sloan], I am of the opinion that given (1) the interlocutory nature of the proceedings relating to the subpoenas, and (2) the different stages involved in answering subpoenas, and (3) the absence of any real prejudice to Mr [Sloan] if the Chief Commissioner is permitted to raise objections at this stage, these matters combined lead to the conclusion that the Chief Commissioner can raise objections to paragraphs 4 and 8 for me to consider and resolve.
If it is not clear, I am of the view that even if required to produce the documents sought by paragraphs 4 and 8, the Chief Commissioner could raise objection, in opposition to Mr [Sloan] being allowed to inspect or have the documents. That together with my view that despite the Chief Commissioner's generally obvious focus on [public interest immunity] in matters of this kind, that to have not raised that issue before, cannot be a reason to deny the Chief Commissioner the right to raise it now. Public interest immunity is a matter of important public policy that impacts on a broad range of matters concerning the criminal justice system and beyond. It is not a matter where arguments about its applicability to certain documents is to be determined not by examining the substantive merits of that claim, but by a slip or inadvertence on the part of those who responded to the subpoena being such as to preclude further debate or analysis.
What follows is the next step of considering and determining whether the call for the documents made by the terms of paragraphs 4 and 8 identify a legitimate forensic purpose. …
His Honour took guidance from the decision of J Forrest J in Commissioner of Australian Federal Police v Magistrates’ Court of Victoria,[21] from which he cited. With respect to item 8 of the schedule, the judge observed that he ‘must deal with each sub-paragraph separately on its merits’. The gravamen of his Honour’s ruling can be found in what the judge then said:[22]
[21][2011] VSC 3, [28].
[22]Emphasis added.
In essence Mr [Sloan] seeks in sub-paragraphs (a)–(d) and (g) photographs and written descriptions of arson crime scenes for fires he was not charged with. Sub-paragraphs (e) and (f) in particular request the photographs and written descriptions of the arson crime scenes for fires Mr [Sloan] was originally charged with but the charges were later withdrawn. Mr [Sloan] was originally charged with 18 fires of which eight remain on the [indictment] and ten were withdrawn prior to production of the hand-up brief and prior to the committal.
Mr [Sloan] asserts his legitimate forensic purpose is to obtain information about the fires he was initially thought by the police to have lit to see what features there are or any pattern in the offending or some distinct modus operandi. If it can be seen that the features at or of the uncharged fires are not in any material sense different to the charged fires Mr [Sloan] may be able to undermine the probative value of the coincidence evidence or coincidence reasoning process. It may be that by looking at the fires that were once thought to be his work, so to speak, it can be shown that the features of the fires are more generic and commonplace than the prosecution asserts, that is in relation to the charged fires.
The material assistance to Mr [Sloan] is that he was suspected and charged with those ten fires at the outset. As noted Mr [Sloan] has foreshadowed a challenge to the coincidence evidence as part of his separate trial application. To have materials similar to what he has in relation to the charged fires, for the uncharged fires, is material that may materially assist him in his challenge to the coincidence evidence. All that is said mindful of what I have set out at the beginning as to what I understand as the facts in issue in this case and how the coincidence evidence is relied upon, and in particular the importance of other evidence that the prosecution has in terms of surveillance and tracking devices.
Mr [Sloan] points out that as a consequence of questions asked of a witness at the committal, photographs and notes relating to one of the uncharged fires … has [sic.] been provide [sic.] to him as tendered evidence at the committal. It is part of the depositions. His point is that he has been provide [sic.] with that material without a murmur, so he should get the remainder of like material. …
But after anxious consideration and given the liberal approach to subpoenas in criminal cases and with the principles … as to the accused’s right to have material to challenge evidence and to cross-examine, I am of the view that this is not a case of fishing as argued by the Chief Commissioner. Although it may be the case that the accused does not know precisely the details of the fires and any modus operandi, he does know he was charged with those fires initially and it is on the cards that the material will materially assist him in dealing with the allegation of him having a particular modus operandi or pattern. Whether ultimately it is wise for the accused to have the jury know that he was initially charged with ten other fires is another matter. But the question of admissibility and separate trials is an important one and thus I consider there is a legitimate forensic purpose.
So I do consider as I have said there is a legitimate forensic purpose as articulated by Mr [Sloan] as relating to the issue of modus operandi. I consider that the words, however, of introduction to paragraph 8 are too broad and should be restricted to the photographs and entries in the LEAP database that raise or deal with a topic of a pattern or modus operandi in the way the fire was lit or the circumstances of the fire. It is not to be seen that every document or note about particular uncharged fire or every photograph is to be produced. It is those that go to the topic of a pattern or modus operandi in the way the fire was lit or the circumstances of the fire.
It remains open to the parties including the prosecution to become involved to reach agreements as to further limitations so as to facilitate efficiency. However the Chief Commissioner may well argue that even constrained in this way that I have just articulated that public interest immunity still attaches to the photographs and the LEAP entries. In this regard it has been foreshadowed that these are still open investigations and the accused is the sole suspect and thus there is a public interest immunity in not providing to the sole suspect matters relating to an investigation that remains on foot. But such arguments will be determined if and when assertions relating to public interest immunity are made at the later date.
The other sub-paragraphs in paragraph 8 go to fires where the accused has not been charged. Those fires are in a different category. Sub-paragraph (a) is a fire in North Melbourne that the accused, as I understand, has come to hear of it by reading the newspapers. Sub-paragraphs (b), (c) and (d) are all fires mentioned in some police note made at some point as the investigation into Mr [Sloan] continued. Sub-paragraph (g) relates to three fires that on one night in, as I understand it, June 2002 an accused was charged and later challenged coincidence evidence which was heard and determined in an interlocutory appeal by the Court of Appeal …
In respect of all these requests Mr [Sloan] asserts his legitimate forensic purpose to be that he needs to see details of those unrelated fires so as to show that many aspects of similarity alleged in respect of the charged fires, or the charges that he faces, are repeated in other fires that he could not be responsible for. He says that he requires the photographs and notes so as to properly be able to challenge the prosecution witnesses who will be called to assert that there is a pattern in the charged fires. …
In respect of the fires in paragraph (a), that is the North Melbourne fire, and (g) the fires that arise from CW v R [[2010] VSCA 288] they have simply other fires and what is known of them is via public sources. It will be obvious to all, the jury, or to me in any argument about the admissibility of coincidence evidence that there are other fires lit by persons other than Mr [Sloan]. This is obvious and trite. Given what I see as the more limited reliance on coincidence reasoning by the prosecution than what it seems Mr [Sloan] thinks, the relevance of other fires is more limited. The purpose of the request cannot be precisely identified. It is a case of Mr [Sloan] seeing if there may be something beyond what has read that may be of relevance or assistance to his defence. This is a classic fishing exercise. In respect to sub-paragraph (a) of paragraph 8 and sub-paragraph (g) of paragraph 8 I determine that there is no legitimate forensic purpose and I strike those sub-paragraphs out or set those paragraphs aside.
In respect to the fires mentioned in the notes of the investigating police, I am likewise of the view that there is no legitimate forensic purpose. It is again a fishing around to see if there may be something that relates to this modus operandi issue. Mr [Sloan] is no doubt hopeful for a juicy find, but it is speculative. He cannot point to anything specific in relation to those fires that establishes a legitimate forensic purpose. There being no established precise legitimate forensic purpose sub-paragraphs (b), (c) and (d) are struck out from the subpoena.
The following may, we think, be distilled from the judge’s subpoena ruling:
· First, the applicant has a legitimate forensic purpose in seeking written descriptions and photographs of the crime scenes with respect to fires with which he was originally charged (the charges later being withdrawn). It is ‘on the cards’ that the material will materially assist the applicant in dealing with the issue of modus operandi or pattern.
· Secondly, with respect to the material concerning the arsons with which the applicant was originally charged, the subpoena is not fishing.
· Thirdly, however, the introductory words to item 8 in the schedule to the subpoena are ‘too broad’. Consistently with the judge’s finding as to legitimate forensic purpose, the item should be read as ‘restricted to the photographs and entries in the LEAP database that raise or deal with a topic of a pattern or modus operandi in the way the fire was lit or the circumstances of the fire’. Not every document, note or photograph concerning a particular uncharged fire is to be produced, only those that go to pattern or modus operandi.
· Fourthly, documents that relate to fires with which the applicant has not been charged are in a different category. The paragraphs in item 8 relating to those documents represent a ‘classic fishing exercise’. Since the applicant cannot demonstrate a legitimate forensic purpose with respect to the documents referred to in them, paragraphs (a), (b), (c), (d), and (g) are to be struck out.
· Fifthly, despite his finding that there is a legitimate forensic purpose with respect to the identified material, the Chief Commissioner is not shut out from contending nonetheless ‘that public interest immunity still attaches to the photographs and the LEAP entries’. If any further arguments concerning public interest immunity are advanced, they will be determined on their merits.
We are unable to discern any error in the judge’s ruling.
As the subpoena ruling recognises, although a mere ‘fishing expedition’ can never be allowed, for production to be ordered it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.[23] A ‘fishing expedition’ occurs where a person ‘has no evidence that fish of a particular kind are in a pool’ but ‘desires to be at liberty to drag it for the purpose of finding out whether there are any there or not’.[24] And as Hunt J observed in Saleam:[25]
In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf Waind v Hill [1978] 1 NSWLR 372 at 385), and the judge’s initial refusal to permit inspection should always be open to review. The problems which arise when counsel is unable to formulate such a submission with clarity are well exemplified by the decisions in Maddison v Goldrick [1976] 1 NSWLR 651 at 666 and in R v McPhail (Court of Criminal Appeal, 15 December 1988, unreported at 25-28).
In my view, the criterion finally suggested by Gibbs CJ in Alister v The Queen as that which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is ‘on the cards’ that the documents would materially assist the accused in his defence.
[23]Alister v The Queen (1983) 154 CLR 404, 414 (Gibbs CJ).
[24]Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, 254 (Owen J).
[25]R v Saleam (1989) 16 NSWLR 14, 18 (Hunt J).
In this case, the judge correctly recognised that it was on the cards that documents held by the Chief Commissioner which bore on similarity, modus operandi or pattern with respect to fires with which the applicant had originally been charged, might materially assist the applicant’s defence (and thus that the applicant had a legitimate forensic purpose in seeking their production).
His Honour also found that, with respect to documents that relate to fires with which the applicant has not been charged, the applicant’s attempt to gain production of those documents was a ‘classic fishing exercise’. The judge was correct. It is plain that the applicant simply wished to trawl the pool of material to see whether he could find anything that might assist him. That kind of exercise does not represent the proper use of a subpoena duces tecum.
As to the judge having left open the possibility of the Chief Commissioner raising future claims for public interest immunity with respect to documents sought by the applicant, the judge did not err. Public interest immunity is not a conventional right capable of being waived at will.[26] If in future such claims arise, the judge will have to determine them on a case by case basis.
[26]State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd and Another (2001) 3 VR 1, 7 [18] (Ormiston JA). See also R v Lipton (2011) 82 NSWLR 123, 148 [85] (McColl JA).
It is unnecessary to discuss any of the other complaints raised by the applicant. He asserted that he has been denied procedural fairness in a number of respects; described aspects of the submissions made by counsel for the Chief Commissioner as ‘unfair and frivolous’; claimed that he has been misconstrued; said that he felt he had been a ‘bit cheated’; and stated that he felt that he had been ‘completely unfairly swindled’. It is enough to say that, so far as we can see, none of these (and similar) claims has merit.
In our opinion, the judge’s subpoena ruling was not attended by error. He was correct to refuse certification.
Conclusion
For the foregoing reasons, the application to review the judge’s refusal to certify must be refused. It necessarily follows that the application for leave to appeal the interlocutory decision cannot be granted.
----
18
6
0