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

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.
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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] SASC 480
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the matter of Hirst versus Police, the applicant, previously convicted of multiple indecent offences, sought to extend the time for leave to appeal to the Full Court. This appeal was made in the context of a subpoena issued by the applicant, which the Commissioner of Police attempted to have set aside. The crux of the matter lay in the interpretation and application of the "on the cards" test for the issuance of subpoenas and whether the subpoena was oppressive. The court had to determine if the subpoena met the criteria for being "on the cards" and if its issuance was oppressive.

The primary legal issues involved the interpretation of the "on the cards" test, particularly in the context of an appeal, and whether the subpoena met this threshold. Additionally, the court had to consider whether the subpoena was oppressive, a matter that encompasses considerations of fairness and proportionality. The applicant argued that the subpoena was necessary to support the application for an extension of time for leave to appeal, while the Commissioner contended that the subpoena did not meet the "on the cards" test and was oppressive.

The court found that the subpoena did not satisfy the "on the cards" test, as it was not reasonably arguable that the documents sought would be tendered as fresh evidence. This conclusion was based on the applicant's previous convictions and the absence of any new evidence that would alter the outcome of the appeal. Furthermore, the court found the subpoena to be oppressive, as it placed an undue burden on the Commissioner without a corresponding benefit in terms of the appeal's merits. Consequently, the subpoena was set aside.

The court ordered that the subpoena issued by the applicant be set aside, effectively denying the application to extend the time for leave to appeal. This decision underscored the importance of adhering to the "on the cards" test and the need for a balance between the rights of the applicant and the obligations imposed on the Commissioner.

Orders