Hirst v Police (No 2)

[2005] SASC 480

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HIRST v POLICE (No 2)

Judgment of The Honourable Justice Gray

16 December 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE

Application to set aside a subpoena - applicant was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency - an appeal against those convictions was dismissed - applicant issued the subpoena in the course of applying for an extension of time for leave to appeal to the Full Court - the subpoena sought documents that if relevant would need to be tendered as fresh evidence - the Commissioner of Police sought to have the subpoena set aside on the grounds that it did not satisfy the "on the cards" test and was oppressive - consideration of the "on the cards" test when subpoena issued in the course of an appeal - consideration of when a subpoena can be set aside due to being oppressive - subpoena set aside.

Hirst v Police [2005] SASC 201; Sutton v The Queen (1984) 152 CLR 528; Hoch v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22; Rowland v Police (2001) 79 SASR 569; Alister v The Queen (1983) 154 CLR 404; R v Salam (1989) 16 NSWLR 14; Ali Tastan (1994) 75 A Crim R 498; n Re Van Beelan (1974) 9 SASR 163; Commissioner for Railways v Small (1938) SR (NSW) 564; Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710, considered.

HIRST v POLICE (No 2)
[2005] SASC 480

Magistrates Appeal

Application to Set aside Subpoena

GRAY J

1. On 1 December 2004, Benjamin Craig Hirst (the applicant) was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency.  On 2 June 2005, I dismissed an appeal against those convictions.[1]  On 23 September 2005, the applicant made an application for leave to appeal to the Full Court.  An extension of time within which to make that application has been sought.

   [1] Hirst v Police [2005] SASC 201.

2. On 28 September 2005, a subpoena was issued, directed to the Commissioner of South Australia Police requiring his attendance to give evidence and produce documents said to be relevant to the application for leave to appeal.  The Commissioner has applied to set aside the subpoena.  I have reached the conclusion that the subpoena should be set aside.  I now provide my reasons for that conclusion.

3. In the course of my reasons dismissing the appeal against the convictions, I outlined the issues at trial as follows:[2]

   It was the Crown case that the appellant was the person responsible for the offending conduct the subject of the charges.  Identification became the key issue at trial.  During cross-examination defence counsel did not challenge the account given of the offending conduct, concentrating instead on identification.  The appellant denied in evidence that he was the assailant in any of the incidents giving rise to the charges.

   The Crown’s case in relation to identification was largely circumstantial.  Although the photographic identification evidence was a major component of the Crown case, it would devalue the remainder of the Crown identification evidence to suggest that the outcome of the trial and appeal turns solely upon the acceptance or exclusion of the photographic identification evidence.  The photographic identification evidence formed an important part of a body of evidence that, on the Crown case, identified the appellant as the assailant.

   All offending took place in or around Linear Park, a public park stretching across numerous metropolitan suburbs in Adelaide.  The offending occurred during mid to late afternoon and typically involved an assailant, whilst jogging, exposing himself to women, and hugging or touching the women.  Other offending involved the assailant masturbating in front of some of the complainants.

   The offending conduct occurred between 1 April and 14 July 2003.  During this period the appellant resided with his parents at Beaverdale Avenue, Windsor Park, within close proximity to Linear Park.  At trial the appellant accepted that during this period he had been involved in the sport of running and had engaged in regular training runs along Linear Park.  These training runs would commence between 4.30pm and 5.30pm.  The defendant denied any involvement in any of the offences.

   [2] Hirst v Police [2005] SASC 201 at [5]-[8].

4. The subpoena is in the following terms:

   1.The records in whatever form of the details of the alleged offending and the   descriptions of the offender given by the victims and witnesses (including drawings and composite representations consequently created by victims, witnesses and police and the photographs of persons shown to the victims and witnesses by police in an attempt to identify the offender) in relation to the complaint concerning an incident that occurred in Linear Park at Walkerville on Monday 5^th September 2005 and is the incident referred to in the attached extract from the Advertiser newspaper published on Friday 9^th September 2005.

   2.The records in whatever form of the details of the alleged offending and the descriptions of the offender given by the victims and witnesses (including drawings and composite representations consequently created by victims, witnesses and police and the photographs of persons shown to the victims and witnesses by police in an attempt to identify the offender) in relation to complaints concerning incidents that occurred in Linear Park South Australia during the period from 1^st January 2003 until the date of issue of this subpoena limited to the incidents which involve:

   2.1a male offender, and

   2.2     one or more female victims, and

   2.3     an act of indecency by the male offender in the presence of a female victim or an unsolicited touching of the female victim by the male offender.

   3.The records in whatever form of the details of the alleged offending and the descriptions of the offender given by the victims or witnesses (including drawings and composite representations consequently created by victims, witnesses and police and the photographs of persons shown to the victims or witnesses by police in an attempt to identify the offender) in relation to complaints concerning incidents that occurred in South Australia during the period from 1^st January 2003 until the date of issue of this subpoena limited to the incidents which involve:

   3.1a male offender, and

   3.2one or more female victims, and

   3.3     an act of indecency by the male offender in the presence of a female victim or an unsolicited touching of the female victim by the male offender, and

   3.4     are limited to such occurrences in the following suburbs:

   3.4.1Athelstone

   3.4.2Campbelltown

   3.4.3College Park

   3.4.4Dernancourt

   3.4.5Felixstow

   3.4.6Gilberton

   3.4.7Highbury

   3.4.8Joslin

   3.4.9Klemzig

   3.4.10Marden

   3.4.11Montacute

   3.4.12Paradise

   3.4.13Royston Park

   3.4.14St Peters

   3.4.15Tea Tree Gully

   3.4.16Vale Park

   3.4.17Walkerville

5. The grounds advanced by the Commissioner of Police in seeking to set aside the subpoena can be summarised as follows:

   -The applicant must establish that it was “on the cards” that the evidence sought by the subpoena could materially affect the outcome of the appeal – and that that test had not been satisfied.

   -Even assuming that the material sought on subpoena may show that other young men had committed offences of this type, any such material could not possibly cast any doubt on the combined strength of the identification evidence in the present case.  It was put that there was no reason to think that it was “on the cards” that any material existed that showed that another person who looked very much like the applicant had committed very similar offences to those of which the applicant had been convicted at about the same time and places.  But it was said that the evidence relied upon did not support any such proposition.

   -The subpoena was too broad both by reference to the geographical area and the period of time.

   Finally, it was said that if the subpoena was not set aside an order should be made in respect of the costs the Commissioner would incur in complying with the subpoena.

6. To put the Commissioner’s submission with respect to the subpoena into context it is necessary to set out some background matters. 

7. The circumstances of the prosecution case were set out in detail in my judgment of 2 June 2005.[3]  The applicant faced trial on 10 counts.  He was convicted on nine and acquitted on one.  The matters proceeded for joint hearing.  Prior to trial there had been an application to a magistrate for an order for separate trials.  This application was refused.  The application was not renewed before the trial judge.  The order of the magistrate ordering joinder was not challenged on appeal.  There appears to have been no challenge to cross-admissibility at trial.  There was no complaint about cross-admissibility on appeal.

   [3] Hirst v Police [2005] SASC 201.

8. Limited grounds were advanced on appeal.  They are set out in my reasons for judgment as follows:[4]

   [4] Hirst v Police [2005] SASC 201 at [51].

   -The magistrate erred in not exercising his discretion to exclude the photographic identification evidence especially taking into account:

   ·    Reasons given regarding the lack of identification parade and photographic identification;

   ·    No explanation was given during the trial as to why photograph number 4 in exhibit P22 was not included in subsequent photo identification procedures;

   ·    The magistrate based his guilty verdicts on the photographic identification evidence.

   -The magistrate’s decision not to exercise his discretion and exclude such photographic identification led to:

   ·    Unfairness and prejudice to the appellant;

   ·    Unsafe and unsatisfactory verdicts of guilty;

   ·    Miscarriage of justice.

   -The magistrate erred in not ruling that there was no case to answer or alternatively erred in not directing himself to return verdicts of not guilty on all counts:

   ·    The magistrate erred in rejecting as a reasonable possibility the proposition that the person first picked out by one of the complainants from a number of photographs, exhibit P22, was the offender.

9. At the hearing of the appeal, counsel for the appellant relied upon a written outline of argument.  This outline addressed the grounds of appeal.  Counsel did not wish to advance other than very limited oral submissions.  There was no challenge to the cross-admissibility of the evidence in respect of each of the counts. 

10. Notwithstanding the limited nature of the appeal and that cross-admissibility was not challenged, I considered it important to identify the nature of the cross-admissibility of the identification evidence.  My comments are set out in my reasons for judgment:[5]

    [5] Hirst v Police [2005] SASC 201 at [52]-[59].

    It was the prosecution case that the trial involved a number of complainants giving evidence of offences of a similar nature involving the same assailant.  However, the prosecution did not seek to describe the case as a “similar fact case” as that term was used by the High Court in Sutton.[6]  Rather, it was the Crown case that there was an underlying unity in the offending conduct, a similarity in the pattern, style and circumstances of the offending, that justified the charges being heard together.[7]

    [6] Sutton v The Queen (1984) 152 CLR 528.

    [7] Hoch  v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22.

    These unifying features included: the nature of the offence (often a brief conversation followed by indecent exposure and/or masturbation); the location of the offences (Linear Park); the time the offending took place (afternoon or evening); the description of the assailant given by each of the complainants (the assailant in every case was jogging and wearing jogging clothes); the descriptions of the assailant’s voice; the descriptions of the assailant’s shorts, (dark blue); and the descriptions of the assailant’s hair (dark brown with blond tips/streaks).

    On the Crown case, the one assailant was responsible for all offences.  This conclusion was supported by the evidence of each complainant.  This support came from the photographic identification of the appellant by the complainants, together with their general descriptions.  It was appropriate for this body of evidence to be used in regard to the determination of each complaint.  In addition to this body of evidence, the similarities in the modus operandi of each count gave rise to an inherent unlikelihood that the identity of the offender in each count would be different.  It was open for the magistrate to conclude that the assailant was the appellant.

    An identical modus operandi was not required to allow the identification evidence of the complainants to be cross-admissible between counts.  The modus operandi was not dissimilar in each of the incidents of offending conduct.  The evidence was cross-admissible.  The weight of the evidence demonstrated the improbability of either: the offences not occurring in the way that has been alleged by the prosecution; or that some other offender could have committed the offences as alleged by the prosecution.

    No Challenge to Admissibility at Trial

    It is well established that an appellate court ought to be slow to interfere with the exercise of a magistrate’s discretion to admit evidence in the absence of identifiable error.  In Rowland v Police  Perry J observed:[8]

    The question on the hearing of an appeal from a magistrate is not whether there was material upon the basis of which it was open to the magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.

    It should be noted that the admissibility of the photographic identification evidence was not challenged at or prior to trial.  No voir dire was conducted.  No objection was made to the showing of the video footage of the photographic identification procedures.

    Following the close of the prosecution case, defence counsel made a no-case to answer submission and in the alternative sought a Prasad direction.  At this time a brief reference was made to an application to exclude the identification evidence.  The following exchange occurred between defence counsel and the trial magistrate at the close of the prosecution case during the submission of no-case to answer:

    CounselJust concentrating on [DS] for a moment.  It is certainly my submission that that identification evidence couldn’t be sent to a jury because the fairness isn’t there and what I would submit is if one only needs ask the rhetorical question: Could public confidence in the photographic identification process be maintained if it was known that the Crown could get away with such a thing.

    …

    His Honour: [Defence counsel] submits that the process engaged by Detective Clarke in this case is flawed and that that flaw carries right through the whole of the procedure adopted for each of the witnesses in question. … The submission is therefore that on the state of the case before me, that the photographic ID cannot be admitted and used in the prosecution case…. I have considered the submissions very carefully.  I have considered all of the evidence before me and I think that it goes beyond just the photographic identification in this case.  If I have a look at the totality of the evidence then I consider that there is a very strong prima facie case against the defendant and therefore it is appropriate for him to provide an explanation.  I find therefore that there is a case to answer.

    The application was not pressed.  No explanation was offered as to why the issue of the exercise of the fairness discretion had not been raised earlier. 

    [8] Rowland v Police (2001) 79 SASR 569 at 574.

11. The reason for setting out this history is that the application for leave to appeal to the Full Court now seeks to fundamentally change the basis of the appeal as earlier conducted before this Court.  The applicant seeks to attack the cross-admissibility of the evidence of identification and generally to attack the evidence of the identification in an entirely different manner.  The subpoena seeks to elicit further evidence said to be relevant to the new proposed grounds of appeal.

    The Basis for the Subpoena

12. The applicant has sworn an affidavit in which he deposes:

    On 16^th September 2005 Mr McKenney called to my attention an article in the Advertiser newspaper published on 9^th September 2005.  Now produced and shown to me and marked “BCH1” is a copy of the article.  The description and location of the offending said to have occurred on Monday 5^th September 2005 and of the offender referred to therein is similar to descriptions given in relation to charges against me.

    I am not the offender referred to in “BCH1” and I will call evidence to prove my whereabouts at the time if necessary.

    The newspaper article referred to is in the following terms:

    Flasher in river park

    A MAN exposed himself to a woman as she walked through the Linear Park at Walkerville on Monday afternoon.

    He is described as caucasian, about 35 years old, 178cm tall with short, brown hair and a fair complexion.

    He was wearing a blue T-shirt, dark coloured trackpants and white sports shoes.

13. It is to be observed that this newspaper article was published on 9 September 2005 and reported an alleged incident that occurred on 5 September 2005, some two years after the conduct, the subject of the applicant’s convictions.  The applicant has not identified how this article, when considered on a “stand alone” basis, has any possible relevance to the offending for which he was convicted.  Documentation concerning an incident in September 2005 does not satisfy the “on the cards” test.

14. The applicant’s father, by affidavit, deposed as follows:

    I understand that Mr McKenney, the solicitor for the applicant, is to issue a subpoena to the Commissioner of Police for the production of complaints and descriptions in relation to similar matters. I have kept a number of clippings from South Australian publications in relation to such matters.

    Now produced and shown to me and marked “DBH1” is a copy of a list I have made of the relevant 22 clippings I have kept.

    Now produced and shown to me and marked “DBH2” is a bundle of copies of the relevant clippings I have kept each numbered to correspond with the numbering in the list “DBH1”.  I confirm that the date that the clippings respectively bear is the respective date of publication.

    I particularly draw attention to item number 18 in “DBH2”, being an article published in the East Torrens Standard on February 9, 2005, in which Police emphasise the fact that this type of offending is very common in Linear Park.

15. The newspaper clippings can be summarised as follows:

Newspaper article 17 July 2003	article in regard to the offending the subject of the charges faced by the applicant.
Newspaper article 6 August 2003	article alleging indecent behaviour in Gilberton on 29 July 2003 – alleging also an earlier incident of exposure near the Hackney Bridge, Linear Park.
Newspaper article 6 August 2003	same content as item immediately above.
Newspaper article 29 October 2003	article concerning the arrest and charge of a man with respect to the indecent assault on a girl on Redward Avenue, Greenacres and later contact with her on her mobile phone.  The article infers that the attack took place at a bus stop.
Newspaper article 16 November 2003	general warning that warm weather “has brought the flashers out along the River Torrens”.
Newspaper article 23 November 2003	article specifies the details of 8 sexual attacks under the heading “Find these sex fiends”.  The particulars of the alleged attacks include: sexual assault following handcuffing, sexual assault in playground;  assault at Hackham West home;  assault on 15 year old girl forced into bushes;  sexual assault on the Golden Way after leaving a nightclub;  woman knocked to the ground and sexually assaulted on Mackinnon Parade;  women in early 20’s abducted by two men driven to north-eastern suburbs house and sexually assaulted one suspect has lost an eye;  girl 14 pushed to the ground and sexually assaulted in the Tranmere/ Magill area.
Newspaper article - undated	article involving exposure on Main North Road and exposure at Nailsworth.
Newspaper article 4 February 2004	article involving an offender who approached a woman, asked for the time, and grabbed her breasts whilst she was standing on Swan Street, Klemzig before escaping.
Newspaper article 10 February 2004	article reported that 14 year old male student charged with a series of sexual assaults.  One involved a woman walking on War Memorial Drive, another involved a woman walking along River Torrens when she was grabbed on the breast and a third woman jogging on King William Road bridge.
Newspaper article – undated	article speaking of concerns of police Sexual Crime Investigation Branch and under the heading “The faces of Evil Predators” reference is made to attacks at Brompton, Seaford, Hindley Street, Pitman Park Paradise, North Adelaide and Port Noarlunga South.
Newspaper article 2 May 2004	article recounting allegations of a woman   being indecently assaulted whilst walking on Unley Road, Unley.
Newspaper article 11 August 2004	article in respect of assault on Kensington Road, Rosslyn Park. The assault involved an attack on two women.
Newspaper article 5 September 2004	article in regard to the assault mentioned re the incident on Kensington Road.
Newspaper article 5 December 2004	article relates to allegations of a man exposing himself on the Parade near West Terrace, Kensington Gardens and also an incident at a bus stop on Kensington Road.
Newspaper article 9 January 2005	article relating to an alleged exposure in Third Avenue, St Peters
Newspaper article 19 January 2005	article relates to allegations of indecent behaviour outside a bedroom window of a suburban home in Third Avenue, St Peters
Newspaper article 2 February 2005	article relates to allegations concerning a man exposing himself from a park bench on the southern side of the River Torrens at Marden.
Newspaper article 9 February 2005	article concerning indecent assault at the Woodcroft Primary School by an offender involved in community service.
Newspaper article 10 February 2005	a further article in regard to indecent assault during community service at Woodcroft Primary School.
Newspaper article 9 February 2005	article about Adelaide Police targeting flashers along Linear Park following a spate of recent incidents. The article states “sometimes we might get one incident every couple of days”
Newspaper article 9 September 2005	article about a man exposing himself to a woman as she walked through Linear Park at Walkerville.
Newspaper article 14 September 2005	article referring to same incident as discussed above. (9 September 2005)

1. When pressed about the general relevance of the newspaper articles, counsel for the applicant indicated that they represented all the clippings that had been kept by the applicant’s father and have been produced for that reason.  It was acknowledged that many could have no relevance to the present proceedings. 

   The “on the cards” test

2. The test for setting aside a subpoena was expounded in Alister v The Queen.[9]   Gibbs CJ observed:[10]

   In [Air Canada v. Secretary of State for Trade] the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view.  In both cases the proceedings were civil and not criminal.  Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, ... so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings.  Although a mere “fishing” expedition can never be allowed, it may be enough that it appears to be “on the cards” that the documents will materially assist the defence.

   [9] Alister v The Queen (1983) 154 CLR 404.

   [10] Alister v The Queen (1983) 154 CLR 404 at 414 (footnotes omitted).

3. In R v Salem[11] Hunt J further considered the “on the cards” test and observed:[12]

   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.

   [11] R v Salam (1989) 16 NSWLR 14.

   [12] R v Salam (1989) 16 NSWLR 14 at 18.

4. A “legitimate forensic purpose” was considered in Ali Tastan[13] where Barr AJ observed:[14]

   A subpoena to produce documents will have a legitimate forensic purpose if it appears to be “on the cards” that the documents will materially assist the person at whose request the subpoena is issued.  ... On the other hand, there will be no legitimate forensic purpose if all the party is doing is trying to get hold of the documents to see whether they may assist him at all in his case.

   [13] Ali Tastan (1994) 75 A Crim R 498.

   [14] Ali Tastan (1994) 75 A Crim R 498 at 505-506 (footnotes omitted).

5. The “on the cards” test is not treated as onerous in a criminal proceeding where significant weight must be given to a subpoena that seeks documents that may support the defence of an accused.  In the present case, however, the subpoena has not been issued in the course of a trial.  The subpoena has been issued in an attempt to find fresh evidence that may then be sought to be adduced on appeal. 

6. The principles underlying the reception of fresh evidence on appeal were considered in Van Beelan[15] where the Court of Criminal Appeal observed:[16]

   If the Court is to regard itself as justified in setting aside the verdict because it thinks that a miscarriage of justice has occurred, the additional evidence must be of substantial importance; it must have cogency and plausibility as well as relevancy; it should be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable men to be affected; it should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced.

   [15] In Re Van Beelan (1974) 9 SASR 163.

   [16] In Re Van Beelan (1974) 9 SASR 163 at 183-184.

7. Subpoenaed documents at trial and on appeal will have legitimate forensic purpose if it is “on the cards” that they will materially assist the defendant’s case.  A distinction, however, should be drawn between documents that could materially assist at trial and documents that could assist on appeal, particularly when those documents would need to be received as further evidence. 

8. In the appeal process, a subpoena will only be able to satisfy the “on the cards” test if the subpoenaed documents are capable of materially affecting the outcome of the appeal.  In the present circumstances, the subpoenaed documents will only be capable of materially affecting the outcome if it is “on the cards” that on appeal they could be received as further evidence.

9. It follows that the “on the cards” test may be more difficult to meet where a subpoena is issued for documents after a trial has finalised and where it is issued in pursuance of fresh evidence for an appeal. 

10. Nothing in the subpoena suggests that the documents that would be held by the police surrounding the alleged other incidents would provide evidence that would meet the “on the cards” test.  The material sought would appear to have little or no relevance to the present case.  For example, the allegations of serious sexual offending at locations remote to Linear Park would appear to have simply no connection at all to the present case.  Similarly, many of the newspaper articles refer to descriptions of offenders and incidents which have at best the remotest possibility of being relevant in the present case - for example, a 34-year-old man who indecently assaulted a girl at Greenacres and then contacted her on her mobile phone, the drawings of men who have no resemblance to the appellant and conducted their sexual assaults in an entirely different fashion; and a 14-year-old boy who was arrested for sexual assaults.  Furthermore the description of the clothing considered similar to the applicant in some of the articles is non descript with no outstanding features. 

11. For the reasons above, I would uphold the attack on the subpoena and set the subpoena aside.

12. Having regard to the conclusion that the subpoena should be set aside because it fails to meet the “on the cards” test it is strictly unnecessary to deal with the Commissioner’s further complaints regarding the oppressive nature of the terms of the subpoena.  However, as the matter has been the subject of debate, it is appropriate to express my views.

13. A subpoena may be set aside on the grounds that it is oppressive or tantamount to discovery.  In Commissioner for Railways v Small,[17] Jordan CJ observed:[18]

    A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party.  If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced.  A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.  It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.  A stranger to the cause ought not to be required to go to the trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant.

    In Lucas Industries Ltd v Hewitt[19] Smithers J said:[20]

    It is, however, of the essence of an obligation to make discovery that a duty rests upon the party subject thereto to decide for himself with respect to documents in his possession whether, in the relevant sense, they relate to the issues in the action.  The subpoena does not in terms seek to impose this task on the respondents.  It seeks production of documents the contents of which relate to specified subjects.  The respondents do not have to direct their minds to the issues.  But it is said that the specified subjects are numerous and are so comprehensive that the task of examining documents to test the relationship of their contents to those subjects does not, in the circumstances of this case, differ in nature from that involved in making discovery.

    In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[21] Clark J further observed:[22]

    [T]here is no doubt that a subpoena, particularly one addressed to a stranger, must be couched in terms of reasonable particularity.  It may call for the production of such a large number of documents of doubtful possible relevance that it should be regarded as oppressive and an abuse of process.   If a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases.  There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.  If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.

    [17] Commissioner for Railways v Small (1938) 38 SR (NSW) 564.

    [18] Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573.

    [19] Lucas Industries Ltd v Hewitt (1978) 45 FLR 174.

    [20] Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 at 178.

    [21] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710.

    [22] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710 at 719-720 (footnotes omitted).

14. A subpoena will not be characterised as seeking discovery merely because it requires the recipient to make decisions regarding whether the documents relate to a specified subject matter.  Likewise it will not assume the characteristics of discovery on the basis that the documents sought are not sufficiently described or capable of being identified.  Furthermore a subpoena will not be deemed oppressive simply because it requires the recipient to collate a large number of documents.

15. Nonetheless where a summons requires a large volume of documents that only marginally relate to the litigation, the court must weigh the interest of the individual with the burden to the recipient of complying with the subpoena.  In the present matter, the subpoena requires the police to collate a significant volume of documents, all of which, as discussed earlier, have very little if any relevance to the application and proposed appeal. 

16. In my view, the terms of the subpoena are oppressive.  Item one refers to an incident occurring more than two years after the offending the subject of the applicant’s convictions.  The subpoena seeks disclosure of all police records concerning the alleged September 2005 offending.  The newspaper article does not describe the “man” as a jogger and no reference is made to the nature of the attack.  There is no reference to the age of the woman involved.  No basis has been established to suggest that item one is anything other than a fishing expedition. 

17. Item two is very broad.  It seeks all police records with respect to wide spread acts of indecency or unsolicited touching.  It seeks information concerning any such acts that occurred anywhere in Linear Park over a two and a half year period.

18. Item three is even broader.  It seeks production of all police records concerning acts of indecency or unsolicited touching in South Australia in 17 named suburbs without any reference to Linear Park.  On its face it would address all sexual misconduct on the part of a male toward a female within an extended period over a wide geographic area.  Items 2 and 3 represent speculative inquiry and can be properly characterised as no more than fishing. 

19. Consequently, the burden to the recipient is far greater than any benefit the applicant may receive if the subpoena was complied with. Accordingly even if the subpoena were otherwise valid I would set it aside as oppressive.