Hirst v Police (No 2)

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.