Holloway v State of Victoria (Department of Justice)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2014 3612

GREGORY MARTIN HOLLOWAY	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF JUSTICE)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2015
DATE OF JUDGMENT:	30 September 2015
CASE MAY BE CITED AS:	Holloway v State of Victoria
MEDIUM NEUTRAL CITATION:	[2015] VSC 526

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ADMINISTRATIVE LAW – Judicial review – Magistrates’ Court – Speeding charges – Certificates under the Road Safety Act 1986, ss 81 and 83A to be relied on as evidence – Witness summonses for production of documents by Traffic Camera Office regarding condition and testing of road safety cameras – Summonses set aside by Magistrate on basis there was no legitimate forensic purpose – Whether error of law on the face of the record – Whether irrelevant considerations taken into account – Observations as to test for legitimate forensic purpose – No error – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Boas	Madgwicks
For the First Defendant	Mr G Lyon QC	Maddocks

HIS HONOUR:

Introduction

Mr Gregory Holloway was facing two speeding charges in the Magistrates’ Court. The proposed evidence for the charges emanated from road safety cameras. In advance of the hearing, Mr Holloway caused two witness summonses to be issued to a section of the Victorian Department of Justice known as the Traffic Camera Office. In short, the summonses sought the production of documents relating to the condition, testing and maintenance of the relevant road safety cameras during certain specified periods and any operational errors or anomalies in the cameras, or challenges to the accuracy of the cameras, during those periods.[1] Mr Holloway was not legally represented in the Magistrates’ Court. On 15 May 2014, on the application of the Traffic Camera Office, the Magistrates’ Court set the summonses aside. The Magistrates’ Court was constituted by Magistrate Chambers, as her Honour Judge Chambers then was. Her Honour was not satisfied that the summonses had been issued for a ‘legitimate forensic purpose’.[2]
[1]The witness summonses were issued under s 43 of the Magistrates’ Court Act 1989.
[2]This phrase is used in many of the relevant authorities and was used by her Honour in this case.

Mr Holloway, as plaintiff, now applies under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 for judicial review of the order made by the Magistrates’ Court whereby the summonses were set aside. He contends that the magistrate’s order was affected by errors of law on the face of the record and that it should be quashed accordingly by an order in the nature of certiorari. The first defendant is the State of Victoria (Department of Justice). In effect, the first defendant represents the Traffic Camera Office. It opposes the relief sought. The second defendant is the Magistrates’ Court of Victoria. It abides the decision of this Court in the ordinary way.

In my opinion, as I will explain, the plaintiff has failed to demonstrate any error of law on the face of the record (or any relevant error at all) on the part of the magistrate. The proceeding will therefore be dismissed.

The ‘pleadings’

Irregularly, there are no grounds of review stated in the plaintiff’s originating motion.[3] However, three grounds are stated in his summons on originating motion. The grounds refer to the relevant witness summonses as subpoenas. Commonly, those expressions are used interchangeably. I will do likewise in this judgment.
[3]Compare Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 56.01(4)(a).

The three grounds of review stated in the summons on originating motion are:

(1)Magistrate Chambers misapplied the decision of this Honourable Court in State of Victoria v Lane [2012] VSC 328 to the facts of this case.
(2)Magistrate Chambers failed to apply properly the principles as to whether the plaintiff had a legitimate forensic purpose for the issuing of the Subpoenas in this case.
(3)The Decision was reached taking into account irrelevant considerations, in that the Magistrate based her decision in part on reference to information sought by the Plaintiff as to faults with the speeding cameras for incidents dating back to 2004-05, where the subpoenas sought no such information.

The summons on originating motion did not contain any particulars of the manner in which the magistrate allegedly misapplied State of Victoria v Lane (see ground 1) or the manner in which her Honour allegedly failed to apply properly the relevant principles (see ground 2). Nor has the plaintiff applied to amend or add to the stated grounds. On the other hand, the plaintiff filed a 23 page written submission dated 24 October 2014, prepared by his counsel, which comprised 108 paragraphs and included 94 footnotes. It referred to dozens of cases. The first defendant filed a 13 page outline of submissions in response dated 7 November 2014. The plaintiff then filed a reply submission dated 14 November 2014 which ran to eight pages, 30 paragraphs and 47 footnotes.

When the hearing before me commenced, counsel for the plaintiff said that he ‘formally’ adopted his submissions dated 24 October 2014 and his reply submissions dated 14 November 2014 and he directed me to two large folders of authorities.

However, because of the way in which the plaintiff’s counsel actually put his case thereafter, it is neither necessary nor desirable for me to reproduce, or attempt to summarise, all of the matters contained in the written submissions. Further, many of the points raised in the written submissions would have been more appropriately raised at first instance in the contest before the magistrate. In other words, a considerable part of the material in the written submissions was directed to showing that there was in fact a legitimate forensic purpose for the subpoenas.[4] This approach was misconceived in several ways. First, judicial review is concerned with the legality, not the merits, of the decision under review. Second, the ‘pleadings’ do not contain any ground to the effect that the decision of the magistrate was not open (or reasonably open) to her.[5] Nor did counsel seek leave to add such a ground, even after this situation was pointed out to him at the hearing.[6] Third, the written submissions occasionally stray into factual considerations that are not based on findings expressed by the magistrate in her reasons but rather on matters said to have been contained in the evidence.[7] This is not permissible in a challenge confined to alleged error of law on the face of the record, as distinct from alleged jurisdictional error.[8] Again, it was expressly noted during the course of oral argument that the plaintiff had not attacked the magistrate’s decision for jurisdictional error.[9] No application for leave to amend so as to allege jurisdictional error was made. Nevertheless, I have considered everything contained in the plaintiff’s (and the first defendant’s) written submissions.
[4]See, eg, plaintiff’s written submissions dated 24 October 2014, [54]–[58].
[5]Compare S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-93; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[6]Transcript, 37-38.
[7]See especially paragraphs [71] to [74] of the plaintiff’s written submission dated 24 October 2014. Further, the evidence before this Court does not include any copy of the evidentiary certificates referred to in paragraph [74] of the plaintiff’s written submission dated 24 October 2014.
[8]Craig v South Australia (1995) 184 CLR 163, 181–183; Easwaralingam v Director of Public Prosecutions (2010) A Crim R 122, 127 [21], 128 [25].
[9]Transcript, 46.

Legislative provisions

It is common ground that the legislative provisions relevant to the proof of the speeding charges against Mr Holloway are accurately set out or described in his written submissions.

Sections 81 and 83A of the Road Safety Act 1986 (‘the Act’) are centrally relevant. As the plaintiff submits, s 81 of the Act is relevant because the road safety cameras are of a prescribed type and because images produced by them will be relied upon by the prosecution as proof (under s 81) of the speed at which the plaintiff was driving; and s 83A is relevant because the prosecution will rely on evidentiary certificates issued under that section.

At the relevant time, s 81 of the Act provided (so far as relevant):

81Certain matters indicated by prescribed road safety cameras are evidence
(1)If in proceedings for an offence to which section 66 applies the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by—
(a)a prescribed road safety camera when tested, sealed and used in the prescribed manner; or
(b)an image or message produced by a prescribed road safety camera when tested, sealed and used in the prescribed manner; or

…
is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.
…

Each of the speeding offences was ‘an offence to which section 66 applies’ for the purposes of s 81(1) of the Act.

Section 83A of the Act provided (so far as relevant):

83A Evidence relating to prescribed road safety cameras
(1)A certificate containing the prescribed information purporting to be issued by an authorised person certifying—
(a)that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or
(b)that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or

…
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.
…

Lane’s case

In State of Victoria v Lane,[10] Mr Lane was facing five charges of speeding on the Eastlink Freeway, each charge being based on road safety camera evidence. He issued a summons to the Traffic Camera Office seeking the production of documents relating to, among other things, the service history and calibration details of the three relevant road safety cameras together with documents relating to the certification of the accuracy of those cameras. Thus the documents sought by the witness summons in Lane were much the same in nature as the documents sought by Mr Holloway’s witness summonses in the present case. Further, the applicable statutory provisions were not significantly different from the statutory provisions applicable in the present case. Those two matters were common ground before me.
[10][2012] VSC 328 (‘Lane’).

The five offences with which Mr Lane was charged were all alleged to have occurred at the same location over a period of 19 days in September 2009. Counsel for Mr Lane informed the magistrate:

that Mr Lane intended to plead not guilty to all charges and to give the following evidence: that he did not exceed the speed limit and was not travelling at the alleged speeds; that he is 50 years of age; that he has no prior criminal history; that no traffic matters are recorded against his name; that he is a careful driver; that while driving on Eastlink he used his cruise control and a satellite navigation system to monitor his speed; that he travels on Eastlink regularly between his home and his work; and that he has not received any infringements for speeding on Eastlink either before or after the dates of the alleged offences.[11]

[11][2012] VSC 328, [5].

In those circumstances, the magistrate refused an application made by the Traffic Camera Office to set aside the summons. Her Honour published detailed written reasons for her decision. She set out what she understood to be the relevant legal principles, before concluding that Mr Lane had demonstrated a legitimate forensic purpose for the production of the documents.

The Traffic Camera Office applied for judicial review before Kyrou J (as Kyrou JA then was). His Honour set out a summary of legal principles relating to the production of documents on subpoena in criminal proceedings, as follows:

Relevant legal principles
16The parties were in agreement about the legal principles that were relevant to this proceeding. Those principles are briefly summarised below.
17Where an accused in a criminal proceeding seeks production of documents pursuant to a subpoena, the accused must satisfy the Court that he or she has a legitimate forensic purpose. That purpose must be identified expressly and with precision.³
18In order to demonstrate a legitimate forensic purpose, the accused must show that ‘it is on the cards’ that the documents would materially assist the accused in his or her defence.⁴ The expression ‘on the cards’ means ‘reasonable possibility’. Accordingly, the test for determining whether there is a legitimate forensic purpose is whether a reasonable possibility exists that the documents would materially assist the defence.⁵
19The reasonable possibility test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and to take advantage of any applicable defences.⁶
20Mere speculation that the documents might assist the accused’s defence is insufficient to satisfy the reasonable possibility test.⁷ This is because mere speculation amounts to a fishing expedition which can never constitute a legitimate forensic purpose.⁸ Mere relevance to an issue in the proceeding is also not sufficient to establish a legitimate forensic purpose.⁹
21Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met.¹⁰ This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively ‘eviscerate’ the defence.¹¹ It follows that the importance of the requested documents to an accused’s ability to establish a defence can inform the application of the reasonable possibility test.¹²

_____________________________________
3R v Saleam (1989) 16 NSWLR 14, 18 (‘Saleam’); Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3 (11 February 2011) [28] (‘CAFP’).
4Alister v The Queen (1984) 154 CLR 404, 414-15 (‘Alister’); Saleam (1989) 16 NSWLR 14, 18; Shaw v Yarranova Pty Ltd [2011] VSCA 55 (3 March 2011) [26] (‘Shaw’).
5DPP v Selway [No 2] (2007) 16 VR 508, 510 [4], 514 [10] (‘Selway’); Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 323-4 [95]-[97]; Johnson v Poppeliers (2008) 20 VR 92, 106 [42] (‘Johnson’), CAFP [2011] VSC 3 (11 February 2011) [28]. Selway and Ragg were cited with approval by the Court of Appeal in Shaw [2011] VSCA 55 (3 March 2011) [26] n 32. Accordingly, in my opinion, the Court of Appeal’s use (in obiter) of the expression ‘appear likely that the documents will materially assist the applicant’ does not reflect a preference for a different test. See Shaw at [26].
6Johnson (2008) 20 VR 92, 106-7 [42].
7A-G (NSW) v Chidgey (2008) 182 A Crim R 536, 550 [58], 552 [68] (‘Chidgey’); CAFP [2011] VSC 3 (11 February 2011) [28]; Shaw [2011] VSCA 55 (3 March 2011) [26].
8Alister (1984) 154 CLR 404, 414-15, 456; Glare v Bolster (1993) 18 MVR 53, 62 (‘Glare’); Johnson (2008) 20 VR 92, 106 [42]; CAFP [2011] VSC 3 (11 February 2011) [28].
9Chidgey (2008) 182 A Crim R 536, 550 [59]-[60]; CAFP [2011] VSC 3 (11 February 2011) [28].
10Alister (1984) 154 CLR 404, 414-15, 451; Johnson (2008) 20 VR 92, 106-7 [42].
11Alister (1984) 154 CLR 404, 451; Johnson (2008) 20 VR 92, 106-7 [42].
12Johnson (2008) 20 VR 92, 107-8 [47].

The opening paragraph of the above extract from Lane indicates that his Honour’s summary of legal principles was based on agreement between the parties. The parties had also been in agreement that the magistrate had correctly identified the relevant principles.[12] However, the Traffic Camera Office contended before Kyrou J that the magistrate had misapplied those principles in Mr Lane’s case.[13]
[12][2012] VSC 328, [22].
[13]Ibid.

The Traffic Camera Office submitted to Kyrou J that, as Mr Lane had not foreshadowed adducing any evidence to suggest that the three cameras had not operated properly, he had failed to establish a legitimate forensic purpose. According to the Traffic Camera Office, the summons was speculative and no more than a fishing expedition to see whether the documents sought contained something that might assist Mr Lane.[14]
[14]Ibid [26].

Kyrou J rejected this submission. In doing so, Kyrou J made observations along the following lines about the magistrate’s reasoning. The magistrate had been aware that a fishing expedition was insufficient to satisfy the reasonable possibility test. She had taken into account Mr Lane’s proposed evidence and the uncontested fact that the alleged offences, being five in number, had occurred at the same location over a short period of 19 days in September 2009. She had considered that these matters provided ‘some foundation’ for ‘Mr Lane’s concern that the [cameras] were not operating properly’. In all the circumstances, the magistrate had concluded that there was a reasonable possibility that the documents sought would materially assist Mr Lane’s defence.[15]
[15]Ibid [27].

Kyrou J expressed the view that this conclusion of the magistrate was open to her on the basis of the foreshadowed evidence and the uncontested facts.[16] His Honour added:[17]

It is not to the point whether this Court would make the same finding on that evidence.

[16]Ibid [28].

[17]Ibid.

His Honour proceeded to distinguish Mr Lane’s case from Glare v Bolster.[18] In the latter case, Beach J (snr) had quashed a decision of a magistrate refusing to set aside a summons seeking a broad range of documents, including documents relating to the ‘operation, repair and/or maintenance’ of a particular make of speed camera that was then being used by Victoria Police. Beach J had determined that the magistrate should have found that the accused had been engaging in a fishing expedition, had been seeking discovery in a criminal proceeding, and had failed to demonstrate a legitimate forensic purpose. Kyrou J commented that that determination was based on the facts and circumstances of the particular case. Given the different factual position in Mr Lane’s case, the magistrate had not been bound to make the same findings as Beach J had made in Glare.[19]
[18](1993) 18 MVR 53.
[19]Lane [2012] VSC 328, [32].

Kyrou J went on in paragraph [34] of his judgment to make some further observations which later assumed particular importance in the argument before me. It is desirable to set out that paragraph in full and also, for necessary context, to set out the two succeeding paragraphs ([35] and [36]):

34It follows from what I have said that there is nothing in Glare that compelled the Magistrate to set aside items 1 and 2 of the Summons. The position might have been different if the only basis upon which Mr Lane sought the Documents was a mere assertion that he did not believe that he was travelling at the speed allegedly detected by the three cameras and that the Documents might demonstrate that he was not travelling at the alleged speeds. In such a situation, it might have been difficult for the Magistrate to reach any conclusion other than that Mr Lane was embarking on a fishing expedition and was seeking discovery in a criminal proceeding.

35That situation, however, is far removed from the facts of the present case. Mr Lane did not rely on a mere assertion of belief that he was not travelling at the speed allegedly detected by the three cameras. Mr Lane relied on a number of matters which, in combination, enabled the Magistrate to conclude that he had demonstrated a legitimate forensic purpose. It follows that the outcome of the present case, as in all cases of this type, depends on its facts.
36The plaintiff also submitted that the Magistrate erred in law in failing to distinguish Johnson v Poppeliers,[20] on the basis that that case dealt with a drink-driving offence rather than a speeding offence and the only defence available for the former offence was that the breath testing device was not in proper working order or was not properly operated. There is no substance to this submission. The existence of a sole statutory defence based on a fault in the relevant device may be a relevant consideration in applying the reasonable possibility test, but it cannot be determinative.
[20](2008) 20 VR 92.

Submissions and observations as to subpoena principles

The plaintiff’s submissions in the present case began[21] and, I think, ended[22] on the basis that paragraphs [16]-[21] of the judgment of Kyrou J in Lane (as set out above) contained a fair summary of the legal principles applicable to the production of documents pursuant to a subpoena in criminal proceedings. The very language of the plaintiff’s grounds of review (especially ground one) is strongly suggestive of that position.
[21]Plaintiff’s written submissions dated 24 October 2014, [36]–[41].
[22]Ibid [86], [88]–[89], [96]; plaintiff’s written submissions in reply dated 14 November 2014 [8], [28], [30]; transcript, 37-40.

However, at other points, the plaintiff submitted, in effect, that certain aspects of Kyrou J’s summary were unduly restrictive or unduly limiting as against an accused, or, at least, that certain parts which favoured the production of documents should be emphasised and other parts de-emphasised.

The defendant’s submissions proceeded throughout on the basis that Kyrou J’s summary was entirely fair.

My own view is that there is nothing unduly restrictive or unduly limiting in Kyrou J’s summary. Nor is there any need for a change of emphasis between parts of the summary so as to bring about greater liberality. Indeed, a question arises as to whether, in one respect, the test for legitimate forensic purpose might need to be expressed more tightly. I will come to that question in due course. But, as will be seen, the question does not require a concluded answer in this case.

In a particular part of his first set of written submissions,[23] the plaintiff effectively contended that what Kyrou J had said in paragraphs [18] and [20] of Lane was wrong. It will be recalled that his Honour had said (citations omitted):

18In order to demonstrate a legitimate forensic purpose, the accused must show that ‘it is on the cards’ that the documents would materially assist the accused in his or her defence. The expression ‘on the cards’ means ‘reasonable possibility’. Accordingly, the test for determining whether there is a legitimate forensic purpose is whether a reasonable possibility exists that the documents would materially assist the defence.
…
20Mere speculation that the documents might assist the accused’s defence is insufficient to satisfy the reasonable possibility test. This is because mere speculation amounts to a fishing expedition which can never constitute a legitimate forensic purpose. Mere relevance to an issue in the proceeding is also not sufficient to establish a legitimate forensic purpose.

By contrast, it was effectively contended in the abovementioned part of the plaintiff’s written submissions that it is not necessary, or at least not always necessary, to show a possibility that the documents would materially assist the defence. It was effectively contended that mere relevance to an issue in the proceeding can be sufficient. Citing Bailey v Beagle Management Pty Ltd,[24] the plaintiff submitted that if a pleading raises a factual issue to which the documents sought may be relevant, then the plaintiff will not be taken to be fishing.[25]

[23]Written submissions dated 24 October 2014, [59]–[70].

[24](2001) 105 FCR 136 (‘Bailey’), [28].

[25]Written submissions dated 24 October 2014, [59].

So, in the present case, according to the submission, the issue underpinning the subpoenas is the proper testing, sealing and use of the road safety cameras and the documents sought are directly relevant to that issue.[26] It would ‘eviscerate’ the plaintiff’s right to compulsory process if the subpoenas were set aside on the basis that he does not already have secondary evidence of the technical documents the production of which the subpoenas are intended to secure.[27] There is no doubt that the documents contain information that is relevant to the issues that arise on the plaintiff’s defence. The only uncertainty is whether that information would help or hinder the plaintiff’s case, ‘but that unpredictability is no bar to the plaintiff pursuing relevant evidence’.[28] The subpoenas describe the documents sought with reasonable particularity and the documents are directly relevant to issues in the proceeding. Therefore, the plaintiff submits, he cannot be held to be conducting a fishing expedition.[29] He says that access to the documents cannot be denied simply because there are no grounds for thinking that the documents might actually assist him.[30] To refuse access on that basis would leave the plaintiff with a ‘legitimate sense of grievance’ because he would not be able to adduce evidence countering the prima facie conclusions in the s 83A certificate.[31] The technical documents are of ‘fundamental importance’ to the plaintiff’s ability to challenge the testing, sealing and use of the road safety cameras. Without access to the documents, the plaintiff will be deprived of a fair opportunity to test the Crown’s case against him. The application of the reasonable possibility test is informed by these circumstances.[32] So went the written submission.
[26]Ibid [60].
[27]Ibid [61].
[28]Ibid [62], citing Bailey (2001) 105 FCR 136, [26].
[29]Ibid [63].
[30]Ibid [69], citing Alister v The Queen (1984) 154 CLR 404, 414-15 (Gibbs CJ); R v Saleam (1989) 16 NSWLR 14, 18 (Hunt J).
[31]Ibid.
[32]Ibid [70], citing the judgment of Kyrou J in Johnson v Poppeliers (2008) 20 VR 92, 107-108 [47].

It seemed to me that the logical consequence of accepting this particular part of the plaintiff’s written submissions might be that every motorist charged with a speeding offence based on road safety camera evidence would be entitled to the production on subpoena of documents of the kind which were sought in Lane and in the present case. At the hearing I asked Mr Boas (counsel for Mr Holloway) whether that was his contention.[33] His first response was to say that this was precisely the question he had not wanted to be asked. He then submitted that his client did not have to make out such a case. So I asked Mr Boas how his client differed from any other putative accused. Mr Boas put that question aside for a moment and suggested that it would indeed be open to this Court to hold that every person accused of speeding would be entitled to the production of documents of the kind in question. That led me to ask Mr Boas whether such a holding would not be in stark conflict with the judgment which had been given by T Forrest J in 2014 in Agar v McCabe.[34] (Agar v McCabe had been decided on 27 June 2014, some six weeks after the decision of the magistrate in the present case.) Mr Boas acknowledged the conflict. He invited me not to follow Agar v McCabe in this respect.
[33]See transcript, 17–20.
[34][2014] VSC 309. See especially [41].

In seeking to support this invitation, Mr Boas drew my attention to a further section of his initial written submissions, being the section headed ‘Policy argument’.[35] In that section, Mr Boas drew heavily on the judgment which had been given by Bell J in 2008 in Ragg v Magistrates’ Court of Victoria.[36]
[35]Submissions dated 24 October 2014, [78]–[84].
[36](2008) 18 VR 300 (‘Ragg’).

In my view, neither Bailey nor the policy argument based on Ragg should lead to a conclusion that mere relevance is sufficient in a criminal case.

I turn first to Bailey. That was a decision of the Full Court of the Federal Court of Australia given in 2001. It was a civil case, not a criminal case. The context was an interlocutory application for security for costs. A notice to produce financial documents (the notice being the equivalent of a subpoena) had been served on the parties from whom security was sought. Those parties applied to the Court to have the notice to produce struck out as fishing. There was no doubt that the documents contained information that was relevant to the security for costs application. The only uncertainty was whether the information would help or hinder the security application. But, in the view of the Full Court, that did not mean that the notice to produce was objectionable as fishing. The Full Court reasoned that, had the documents been sought as part of the process of discovery, mere relevance to an issue in the proceeding would have been sufficient. The Court pointed out that even before a proceeding is issued, and merely in order to decide whether a cause of action against another person may exist, a person can obtain access to documents by making an application for ‘pre-issue discovery’ under certain special rules of the Federal Court or corresponding rules of other courts. It seems that much the same approach continues to be adopted by the Federal Court in the exercise of its (almost entirely civil) jurisdiction.[37]
[37]See Mandic v Phillis (2005) 225 ALR 760 (Conti J); Wong v Sklavos (2014) 319 ALR 378 (Full Federal Court).

However, the discovery rules (both general and special) referred to in Bailey apply only to civil cases, not to criminal cases. Generally speaking, in civil cases, discovery of relevant documents is available to, and against, each party equally. By contrast, in criminal cases, the traditional position has been that discovery is not available either to or against the Crown or to or against the accused,[38] at least where the accused is a natural person as distinct from a corporation.[39] A subpoena cannot be used as a substitute for discovery in either civil or criminal cases.[40]
[38]Clarkson v Director of Public Prosecutions [1990] VR 745 (Full Court), especially 759; Sobh v Police Force of Victoria [1994] 1 VR 41 (Full Court), especially 41, 47-8 (Brooking J), 66-9 (Ashley J); R v Saleam (1989) 16 NSWLR 14, 19 (Hunt J, with whom Carruthers and Grove JJ agreed); R v Mokbel (Ruling No 1) [2005] VSC 410, [39] (Gillard J); R. Fox, Victorian Criminal Procedure: State and Federal Law (The Federation Press, 2015), [2.4.4]; cf Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 316-320 [67]-[79] (Bell J), especially at [78].
[39]Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261, [505]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448, 465 [80]–[81] (Nettle J).
[40]Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575 (Jordan CJ); Carter v Hayes (1994) 61 SASR 451 (Full Court), 453-54.

It is true that, in recent years, at least in Victoria, the obligations of disclosure resting on the Crown in criminal cases have come under extensive statutory regulation.[41] As a result, those obligations may now be a little wider than they were in the past. Thus Division 2 of Part 3.2 of the Criminal Procedure Act 2009 contains elaborate requirements for the disclosure of information relating to the prosecution case prior to a summary hearing. Likewise, Part 4.4 of the Criminal Procedure Act 2009 imposes extensive pre-hearing disclosure obligations in respect of committal proceedings. Of course, committal proceedings themselves involve further compulsory disclosure of evidence and other material relating to the Crown case. The disclosure obligations under the Criminal Procedure Act 2009 extend to ‘any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence’, even where the prosecution does not intend to rely on the information, document or thing.[42] The statutory obligations of disclosure are continuing obligations.[43] In summary matters, if the accused considers that the prosecution has failed to comply with its disclosure obligations, the accused may apply to the Magistrates’ Court for an order for disclosure.[44] Section 416 of the Criminal Procedure Act 2009 provides:
[41]See, generally, R. Fox, Victorian Criminal Procedure: State and Federal Law (The Federation Press, 2015), [2.4.3], [2.4.4], [8.3].
[42]See Criminal Procedure Act 2009, ss 41(1)(e) and 110(e).
[43]Criminal Procedure Act 2009, ss 42 and 111.
[44]Criminal Procedure Act 2009, s 46.

416 Disclosure of material by prosecution
(1)Nothing in this Act derogates from a duty otherwise imposed on the prosecution to disclose to the accused material relevant to a charge.
(2)Nothing in this Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under this or any other Act or any rule of law.

Of course, the Criminal Procedure Act 2009 has nothing to say about the disclosure of documents in civil proceedings. Separate statutory regimes apply to the disclosure and discovery of documents in civil proceedings.[45] As it happens, the recent trend in relation to civil proceedings, at least in Victoria, has been to reduce, by statute and by court rules, the size of the parties’ disclosure obligations, whereas the same cannot be said in relation to the corresponding obligations in criminal proceedings. But the fact remains that the statutory regulation of disclosure in criminal cases is self-contained and quite separate from that of disclosure in civil cases. Further, so far as Victoria is concerned, it is arguable (though I need not and do not express any concluded view on this point) that the highly elaborate regime in the Criminal Procedure Act 2009 for the disclosure of documents by the prosecution should incline the courts not to expand any other duties of disclosure resting on the prosecution in criminal cases.[46]
[45]As to Victoria, see Civil Procedure Act 2010, Part 4.3. See also the civil procedure rules of the Victorian courts insofar as they relate to disclosure and discovery.
[46]See and compare Criminal Procedure Act 2009 s 416, set out above.

In Bailey, the Full Court did not mention a single criminal case. Nor, in the 14 years since Bailey was decided, has it ever been referred to in, much less treated as applicable to, a criminal case, as far as I can ascertain. It is true that, in Victoria, on some occasions, the principles relating to the production of documents on subpoena in criminal cases have been treated as applicable to civil cases. Thus, in Messade v Baines Contracting Pty Ltd,[47] which was a ruling in a civil trial involving the assessment of damages for negligence in favour of a worker against an employer, J Forrest J treated the principles which his Honour had earlier stated in a criminal matter, namely Commissioner of Australian Federal Police v Magistrates’ Court (Vic),[48] as being applicable to the determination of an objection by the plaintiff to a notice to produce documents (the equivalent of a subpoena) issued by the employer. Since then, in several other civil cases, Victorian judges and Associate Judges have followed suit, albeit on each occasion (so it seems) without argument from the parties on the point.[49] In any event, I consider it to be clear that Bailey and the (invariably civil) cases which have followed Bailey have no application in criminal cases.
[47][2011] VSC 56.
[48][2011] VSC 3 [28].
[49]See, for example, Woolworths Ltd v Svajcer [2013] VSCA 270, [16]; Matthews v SPI Electricity Pty Ltd (No 12) [2014] VSC 131, [9]–[11], [35]–[37] (Derham AsJ); GE Mortgage Solution Ltd v Whild (No 2) [2014] VSC 581, [53]-[54] (Derham AsJ); Robinson v Essendon Football Club (Ruling, J Forrest J, 1 September 2014), [10]; Webb v Wheatley [2015] VSC 153, [55] (Derham AsJ); Kenny & Anor v Gippsreal Ltd [2015] VSC 284, [95] (Vickery J).

I turn now to the plaintiff’s ‘policy argument’ based on Ragg.

Ragg was an application for judicial review of a decision of a magistrate refusing to strike out certain paragraphs of two summonses to produce documents issued by the accused person to the informant, an officer of the Australian Federal Police, in respect of a forthcoming committal proceeding. The charges were of tax evasion.

In Ragg, counsel for the informant submitted to Bell J that there was no discovery in criminal proceedings and that the primary (and continuing) duty of disclosure rested on the prosecution.[50] Counsel submitted that that duty had been discharged without complaint by the defence; and that the accused’s summonses had in effect sought discovery of prosecution documents. Counsel submitted that the magistrate had failed to take into account the prosecutor’s duty of disclosure and the fact that it had been duly discharged. According to counsel, no legitimate forensic purpose for the summonses had been demonstrated. Their only purpose had been to fish for documents that might possibly be relevant.[51]
[50]Ragg (2008) 18 VR 300, 306 [25].
[51]Ibid 306 [26].

Bell J did not accept that the magistrate had erred as alleged. Although the case had arisen before the commencement date of the Charter of Human Rights and Responsibilities Act 2006, Bell J held that international human rights were relevant when deciding whether the magistrate had committed an error of law. His Honour said that international human rights ‘inform the scope and application of the court’s power to strike out summonses to produce issued by, as well as the related duty of a prosecutor to disclose material documents to, the defence in criminal cases’.[52] The relevant rights, his Honour held, were the right to equality before the law and the right to a fair trial specified in Article 14(1) and (3) of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party. From these rights had emerged the principle of equality of arms.[53] According to that principle, his Honour said, each party (whether in a civil or a criminal trial) must be afforded a reasonable opportunity to present his or her case in conditions that do not place him or her at a disadvantage viz a viz his or her opponent.[54]
[52]Ibid 307 [35].
[53]Ibid 309 [42].
[54]Ibid 310 [46].

From these premises, Bell J turned to the identification of the test to be applied in a criminal proceeding for determining whether a summons has been issued for a legitimate forensic purpose on the one hand, or to engage in an illegitimate fishing expedition on the other.[55] It was clear, his Honour said, that an accused did not have to establish that the defence would actually be assisted by production of the documents.[56] His Honour continued:[57]
[55]Ibid 321 [87].
[56]Ibid 321 [88].
[57]Ibid 321 [89].

The defence has to establish only that ‘it appears to be “on the cards” that the documents will materially assist the defence’. That influential expression came from the pen of Gibbs CJ in Alister v R.[58]

Then, by reference to an example given by Gibbs CJ in Alister v The Queen, Bell J expressed the view that Gibbs CJ had had in mind the ‘non-restrictive’ application of the test. (The example given by Gibbs CJ was of an undisclosed witness statement made by an important Crown witness.) Bell J observed that the expression ‘on the cards’ had been used by Gibbs CJ as a metaphor to explain the applicable test. Bell J continued:[59]
With respect, as a way of explaining that test, perhaps it has outlived its usefulness.

In support of that view, Bell J cited the judgment of Adams J of the Supreme Court of New South Wales in Roads & Traffic Authority of New South Wales v Conolly[60] and the judgment of Cummins J of this Court in Director of Public Prosecutions v Selway.[61] Bell J went on to say that the idea that a ‘more certain test’ should be adopted had been considered in those two cases and also in Felice v County Court of Victoria[62] by Osborn J (as Osborn JA then was); and that, from those cases, a ‘positive trend’ had emerged that his Honour proposed to continue.[63] This led Bell J to restate the test in language which did not include the expression ‘on the cards’. His Honour said:[64]
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.

[58](1984) 154 CLR 404, 414.

[59]Ragg (2008) 18 VR 300, 322 [92].

[60](2003) 57 NSWLR 310 (‘Conolly’).

[61](2007) 16 VR 508.

[62][2006] VSC 12, [52], but cf [49].

[63]Ragg (2008) 18 VR 300, 323 [94].

[64]Ibid 323-24 [96].

Although Bell J observed that, as a principle of international human rights law, the equality of arms principle applies to both civil and criminal trials,[65] nowhere in his Honour’s careful and detailed judgment did his Honour propound the view that there was no relevant difference between civil cases and criminal cases for present purposes. Bell J cited numerous criminal cases but hardly any civil cases. Bailey was not mentioned. His Honour’s focus was on criminal cases throughout. As indicated in the passage set out above, his Honour’s preferred test was expressed by reference to the conducting of a fair trial ‘between the prosecution and the defence of the criminal charges that have been brought’.[66]
[65]Ibid 310 [46].
[66]Ibid 323 [96].

Moreover, in my view, Bell J simply did not hold that mere relevance could be sufficient. The concept of material assistance to the defence was retained throughout. Thus, as indicated above, in summarising the restated test, Bell J referred to a need to demonstrate ‘that there is a reasonable possibility the documents will materially assist the defence’.[67] His Honour immediately described this as a ‘threshold’ (albeit a low threshold).[68]
[67]Ibid 324 [96].
[68]Ibid. And see the reference below to the comment of Beazley JA in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 (‘Chidgey’), 555 [80] to the effect that her Honour did not understand Bell J to be indicating in Ragg that mere relevance was sufficient.

It is true that, in commenting further on the restated test, Bell J observed that it did not apply in all cases in a fixed manner as if the relevant considerations always had the same value. And his Honour went on to say that it was necessary to consider the importance of the issue to which it was said the subpoena related and the importance of the documents in question in the determination of that issue and, more generally, the circumstances as a whole.[69] These comments were picked up by Kyrou J in Johnson v Poppeliers[70] and again in Lane.[71] However, none of this involves any inconsistency with the proposition that, in criminal cases, relevance alone cannot be enough.
[69]Ragg (2008) 18 VR 300, 324 [97] and cases there cited.
[70](2008) 20 VR 92, 105 [38], [47].
[71][2012] VSC 328, [21]. See above.

There may be certain kinds or classes of documents of which it can almost always be said that it is ‘on the cards’ that their production would be of assistance to the defence of the accused. The best example may be the very one given by Gibbs CJ (in the context of a very serious criminal matter) in Alister v The Queen, namely an undisclosed witness statement made by an important Crown witness. Thus, in Carter v Hayes,[72] King CJ (with whom Bollen and Mullighan JJ agreed) said that the inspection of statements of witnesses for the prosecution should be allowed virtually as a matter of course. King CJ went on to say that the defence is prima facie entitled to inspect any document which may give it the opportunity to pursue a proper and fruitful course in cross-examination.[73] In Thomas v Campbell[74] Nettle J spoke in very similar terms, adding that the position was the same whether the document went to a fact in issue or simply to credit; and adding also that, in criminal proceedings, as opposed to civil proceedings, the test is no stricter for documents which go solely to credit than for those which may go to a matter in issue. Nettle J continued:[75]

The test is whether the material is properly capable of acceptance, and if so would so affect credit of a witness that, having regard to the part played in the trial by that witness, it is likely that a jury would have arrived at a different verdict.[76]

Needless to say, the documents sought by Mr Holloway’s subpoenas in relation to these minor speeding matters were not of a kind or class referred to in those authorities. Nor do those authorities cast any doubt on the general principle that, in addition to the need for relevance, it must be ‘on the cards’ (or reasonably possible) that the documents sought will assist the defence of the accused.

[72](1994) 61 SASR 451, 456, citing Maddison v Goldrick (1976) 1 NSWLR 651.

[73]Ibid, citing Maddison v Goldrick (1976) 1 NSWLR 651, 667–668; R v Saleam (1989) 39 A Crim R 406, 410.

[74](2003) 9 VR 136, 143 [13].

[75]Ibid.

[76]Citing R v Saleam (1989) 16 NSWLR 14 at 19–20.

Moreover, there is substantial appellate authority for the proposition that relevance alone cannot be enough in a criminal case. In Attorney-General (NSW) v Chidgey,[77] a judgment of the Court of Criminal Appeal of New South Wales given in 2008, there is a section in the judgment of Beazley JA (with whom James and Kirby JJ agreed) which is actually headed ‘Mere relevance not sufficient’. Under that heading, Beazley JA said, among other things:

It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant.

Beazley JA held that there was a second element of the ‘test’, namely that it must be ‘on the cards’ that the documents sought would materially assist the case of the accused.[78] Her Honour demonstrated that it had been accepted in New South Wales for at least the preceding 15 years that the test had two elements and that mere relevance was not sufficient.[79]

[77](2008) 182 A Crim R 536, 550-51 [59]–[63].

[78]Ibid.

[79]Ibid.

In this respect, Chidgey continues to represent the law as understood in New South Wales.[80] Because Chidgey is a decision of an intermediate appellate court, judges sitting at first instance in Victoria should follow it in this respect unless there be some relevant statutory difference or some conflicting decision of the Victorian Court of Appeal, or unless convinced that it is plainly wrong.[81]
[80]Perish v R [2015] NSWCCA 129, [21]-[24].
[81]Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89; CAL No 14 Pty Ltd v Motor Accidents Board [2009] 239 CLR 390, 411–413 [48]–[51]; Director of Public Prosecutions v Patrick Stevedoring Holdings [2012] VSCA 300 [111]–[128]; Hasler v Singtel Optus [2014] NSWCA 266 [91]–[103].

The plaintiff did not argue that Victorian statutory law was relevantly different from the law in New South Wales or that there was any conflicting decision of the Victorian Court of Appeal. References to section 24 (fair hearing) and section 25 (rights in criminal proceedings) of the Charter of Human Rights and Responsibilities Act 2006 were included in the plaintiff’s list of authorities, and copies were provided to the Court, but otherwise the plaintiff did not mention the Charter. Nor did the plaintiff rely upon the Criminal Procedure Act 2009. Rather, as I have mentioned, he relied principally on Ragg (with its references to the ICCPR) which was decided before the Charter of Human Rights and Responsibilities Act 2006 came into relevant operation and before the Criminal Procedure Act 2009 was enacted. It is unlikely that the advent of the Charter requires the taking of a more liberal approach than that taken by Bell J in Ragg. In that case, Bell J gave a very wide reading to the prosecutor’s common law duty to disclose material documents to the defence as part of the prosecutor’s overall common law duty to act fairly towards the accused. Indeed, Bell J considered that the Australian common law already gave effect to the equality of arms principle. Yet, even against that background, Bell J did not conclude that mere relevance could be sufficient. Likewise, I would not accept that any increase in the scope of the duties of prosecutors to disclose documents which may have been brought about by the introduction of the Criminal Procedure Act 2009 has been such as to require or warrant the discarding of the second element of the test for legitimate forensic purpose.

Nor does there appear to be any decision of the Victorian Court of Appeal that conflicts with the proposition that, in criminal cases, the legitimate forensic purpose test has two elements. Indeed, there are decisions of the Victorian Court of Appeal which support the view that, at least in civil cases, the test has two elements.[82]
[82]Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26]; Woolworths Ltd v Svajcer [2013] VSCA 270, [16], [40]– [47]. See further below.

For these reasons, I would reject the plaintiff’s suggestion that I should not follow Lane or Agar v McCabe insofar as those cases reject the proposition that, in a criminal case, mere relevance to an issue in the proceeding is sufficient to establish a legitimate forensic purpose.

I turn now to the abovementioned question of whether, in a particular respect, the principles stated by Kyrou J in Lane may need to be expressed more tightly. The question is whether it is appropriate to depart from the expression ‘on the cards’ in favour of the expression ‘reasonable possibility’ in stating the test of legitimate forensic purpose.

In Chidgey, Beazley JA considered in detail the question of how the legitimate forensic purpose test should be expressed. In doing so, Beazley JA gave close consideration to the judgment of Bell J in Ragg and also to the judgment of Adams J in Conolly to which, in turn, Bell J had referred in Ragg. Beazley JA said that she had some difficulty with Adams J’s approach.[83] She observed that the comments made by Adams J in Conolly pitched the test at a much lower threshold than that contained in the test as stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999],[84] namely that it must be ‘on the cards’ that the documents will materially assist the case. Beazley JA concluded:[85]

79The likely effect of [Adams J’s] approach is to create a situation whereby, provided relevance is established, there will almost always be a ‘reasonable chance’ that the material will assist an applicant seeking production of documents to establish the case proposed be made at the trial. As is apparent from Alister, Carroll and R v Saleam [1999], something more than that is required and in my opinion the approach of Adams J should not be followed.
80The test stated by Bell J in Ragg v Magistrates’ Court of Victoria doesn’t necessarily have the same effect as that which flows from the reasons of Adams J taken in their entirety. In particular, I do not understand Bell J to be indicating that mere relevance is sufficient. However, I see no reason to depart from the language used by Simpson J in this Court in R v Saleam [1999]. To do so only invites confusion. This Court has already stated what the test is and in my opinion, should continue to apply that test in accordance with the language used in the form in which it has stood since Alister and R v Saleam [1999].

[83]Chigdey (2008) 182 A Crim R 536, 554 [77].

[84][1999] NSWCCA 86, [11].

[85]Chigdey (2008) 182 A Crim R 536, 555 [79]–[80].

It appears that Chidgey continues to state the law for New South Wales in this respect also.[86] On the other hand, in 2013, in Commissioner of the Police Force (NT) v Cassidy,[87] the Full Court of the Supreme Court of the Northern Territory (Mildren ACJ, Kelly and Blokland JJ) (in a judgment in which Chidgey was cited and Ragg was quoted) said:

It was argued by the accused on the basis of DPP (Vic) v Selway[88] and R v Law[89] that the correct test is not whether it is ‘on the cards’ that the documents would assist the party’s case, but whether there was ‘a reasonable chance’ that it would do so. We agree with the view expressed by Martin (BR) CJ in Hudson v Branir[90] that this is, essentially, a distinction without a difference.

[86]See ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, [15]–[26], especially [19]–[21] (Tobias JA) (with whom Baston JA and Handley AJA agreed); Perish v R [2015] NSWCCA 129, [21]–[24]; Hancock v Rinehart [2015] NSWSC 896, [20]–[24]; cf Commissioner for Police v Hughes [2009] NSWCA 306 [43]–[95] per Young JA (with whom Ipp JA and Handley AJA agreed).

[87][2013] NTCA 1, [16]. For yet another, very recent perspective on this area of the law, see Australian Federal Police v XYZ [2015] SASC 113 (Parker J).

[88](2007) 16 VR 508, 513–514 [9]–[10].

[89](2008) 23 NTLR 1.

[90](2005) 15 NTLR 35, 48 [41].

In Johnson v Poppeliers[91] a case decided in 2008 involving a subpoena to produce documents relating to the servicing and maintaining of a breath analysing instrument to which the Road Safety Act 1986 applied, Kyrou J considered Chidgey as against Felice, Selway and Ragg, although neither side had referred his Honour to Chidgey. In the end, Kyrou J determined that, notwithstanding Chidgey, the judgments in Felice, Selway and Ragg ‘usefully clarify how the question of the existence of legitimate forensic purpose should be decided in Victoria’.[92] His Honour’s determination has since been highly influential in Victoria.
[91](2008) 20 VR 92, 106.
[92]Ibid [43].

However, the question whether it is permissible to depart from the ‘on the cards’ formulation in favour of an expression such as ‘reasonable possibility’ has not been squarely considered at appellate level in Victoria. In Shaw v Yarranova Pty Ltd,[93] a civil case decided in 2011, the Victorian Court of Appeal (Redlich and Mandie JJA) refused leave to appeal from a decision of a single judge dismissing an application for the review of orders made in the Costs Court. The Costs Court had refused an application made by Mr Shaw for the production of certain documents on subpoena. Redlich and Mandie JJA said that where such an application was made:[94]

… the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is ‘on the cards’ that the documents will materially assist his case. 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 in his case.’ The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.

[93][2011] VSCA 55 (‘Shaw’).

[94]Ibid [26]. Footnotes omitted.

As was later noted by Kyrou J in a footnote in Lane,[95] the cases cited by Redlich and Mandie JJA at paragraph [26] of Shaw included Selway and Ragg. In the footnote, Kyrou J observed that these two cases had been cited by the Court of Appeal ‘with approval’. On that basis, Kyrou J inferred that Redlich and Mandie JJA had not, by their use of the word ‘likely’, intended to depart from the ‘reasonable possibility’ test stated in Ragg. Whether any approval of Selway and Ragg by the Court of Appeal in Shaw extended beyond a general endorsement of the proposition that the test involved two elements may be open to debate. Redlich and Mandie JJA themselves did not use the expression ‘reasonable possibility’. Rather, in the paragraph in question ([26]), they used the expression ‘on the cards’. Further, I note that the cases cited by Redlich and Mandie JJA also included Chidgey.
[95][2012] VSC 328 [18] fn 5.

In a civil appeal decided in 2013, Woolworths Ltd v Svajcer,[96] Nettle, Ashley and Neave JJA noted that in the decision of the County Court under appeal, the judge had referred to the propositions set out by J Forrest J in Commissioner of Australian Federal Police v Magistrates’ Court of Victoria[97] (being propositions which had been restated by his Honour in Messade v Baires Contracting Pty Ltd[98]) relating to whether a party is entitled to have access to documents which have been subpoenaed. The Court of Appeal observed that neither counsel in the appeal had challenged the correctness of those propositions, which were then reproduced in the judgment of the Court of Appeal, including the footnotes as contained in the judgment of J Forrest J. Proposition (c) was expressed as follows:[99]

(c)the applicant for the witness summons must also satisfy the court that it is ‘on the cards’,[100] or that there is a ‘reasonable possibility’,[101] that the documents sought under the subpoena ‘will materially assist the defence’.[102]

Perhaps for the reason that neither counsel had challenged the correctness of the listed propositions, the Court of Appeal made no comment on the question whether it was appropriate to treat the expression ‘reasonable possibility’ as the equivalent of ‘on the cards’. It is true that, in obiter dicta, the Court of Appeal observed that one of J Forrest J’s other propositions — namely proposition (b) (‘the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced’) — was too broadly expressed,[103] whereas the Court of Appeal otherwise made no adverse comment on J Forrest J’s propositions. However, I note that when the Court of Appeal came to discuss (obiter) the circumstances in which it would be appropriate for a court to inspect subpoenaed documents in order to determine a dispute about their production, the Court of Appeal itself used the expression ‘on the cards’, not the expression ‘reasonable possibility’.[104]

[96][2013] VSCA 270.

[97][2011] VSC 3, [28].

[98][2011] VSC 56, [6].

[99]Woolworths Ltd v Svajcer [2013] VSCA 270, [16].

[100]Citing Alister v The Queen (1984) 154 CLR 404, 414.

[101]Citing DPP v Selway (Ruling No 2) (2007) 16 VR 508, [10]; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, [96].

[102]Citing Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, [5], [62], [64]; R v Mokbel (Ruling No 1) [2005] VSC 14 [45]; R v Saleam [1999] NSWCCA 86, [11]; Alister v The Queen (1984) 154 CLR 404, 414; R v Saleam (1989) 16 NSWLR 14, 18.

[103][2013] VSCA 270 [41].

[104]Ibid [47].

In Lane, Kyrou J cited both Chidgey and Ragg without referring to the question whether there was any real difference between them. On the view taken in Cassidy, there is no real difference. However, in my respectful opinion, it is at least arguable that the language of the test matters. Hence it may be that, as a matter of stare decisis or at least comity, Victorian trial judges and the Victorian Court of Appeal should follow Chidgey in this respect also, unless convinced that it is plainly wrong.[105] My own provisional view is that, at least in criminal cases, this Court should so follow Chidgey.
[105]Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89; CAL No 14 Pty Ltd v Motor Accidents Board [2009] 239 CLR 390, 411–413 [48]–[51]; Director of Public Prosecutions v Patrick Stevedoring Holdings [2012] VSCA 300 [111]–[128]; Hasler v Singtel Optus [2014] NSWCA 266 [91]–[103].

However, for the purposes of determining this proceeding, I will assume (without deciding) that the law is correctly stated in all respects by Kyrou J in his summary of principles in Lane. It is appropriate to proceed in that way because the parties did not address any submissions to the ‘on the cards’ point and because the outcome of this particular case would be the same in any event.

The magistrate’s ruling in the present case

In the present case, the magistrate’s ruling of 15 May 2014 was delivered orally after her Honour had retired for a time to consider it. Her Honour said:[106]
[106]The Court Book contains two versions of the magistrate’s ruling of 15 May 2014. One is a transcript produced by Legal Transcripts Pty Ltd which is marked ‘Transcribed but not recorded by Legal Transcripts’. The other is a document exhibited as GMH-3 to the affidavit of Mr Holloway sworn 15 July 2014. He says in that affidavit that he obtained from the Magistrates’ Court a copy of the tape recording of the reasons given by Magistrate Chambers and arranged for a transcript of that recording to be prepared. However, there is no indication in the affidavit or the exhibit as to the identity of the preparer of the transcript. This Court is familiar with the work done by Legal Transcripts Pty Ltd. Principally for that reason, I have chosen to reproduce their transcript rather than the other one. There was no suggestion at the hearing that the minor differences between the two were of any significance.

In this matter the Traffic Camera Office seeks to set aside subpoenas that have been issued by Mr Holloway where he is charged with two speeding offences and in which he seeks production of certificates and other documents and records relating to the testing of the relevant traffic cameras, for as I understand it, the two months preceding and then following the dates of the relevant offences in February 2013.
On 12 March this year I set aside earlier subpoenas issued by Mr Holloway in respect of the same offences but which in their terms sought information over a more extensive period of time, that is, between February 2006 and February 2014. On that date I heard evidence from Mr Holloway and in my reasons for decision I determined that Mr Holloway had failed to establish a legitimate forensic purpose for the issuing of those subpoenas. I make it clear that the onus was on Mr Holloway to establish such a purpose secondary to an examination of the scope or otherwise of those subpoenas.
In submissions before me today Mr Holloway contends that in the absence of the information he now seeks that is not presently available to him, he has no means of producing any evidence to the contrary in order to defend the material contained in any s. 83A certificate to be relied upon by the prosecution. He states that places him in an unfair position as he does not have material in order to meet any statutory defence.
In order to establish a legitimate forensic purpose Mr Holloway bears the onus of establishing a reasonable possibility that the documents, if they are in existence, would materially assist in his defence. In the decision of Lane in the Supreme Court, his Honour Justice Kyrou expressed the view that in cases where a defendant wishes to rely upon a statutory defence such as here and that the defence involved technical information exclusively in the possession of the Crown, this can be relevant in informing the application of the reasonable possibility test.
That said, however, it cannot override the requirement for the applicant to establish a legitimate forensic purpose otherwise the s. 83A certificate process would be thwarted by mere assertions that the accused has a right to test the information contained in that certificate. It must always be that the legitimate forensic test is satisfied.
Here however Mr Holloway has present[ed] no further material additional to that provided on oath before me on the previous occasion to establish a legitimate forensic purpose. Critically, the evidence before me on the previous occasion was that Mr Holloway had been unable to say what speed he may or may not have been travelling on those two occasions. Indeed, whether he was in fact driving the alleged vehicle on either or both days.
There was therefore no cogent evidence before me then or now that raises any prospect that on these two occasions the cameras may have been malfunctioning, notwithstanding Mr Holloway’s absence of priors. As I stated, the situation based on the evidence of Mr Holloway is in contrast to the position in the case of Lane where the defence there raised, in a positive sense, the prospect that Mr Lane there denying the speeding allegation and having given evidence of being cognisant of the speed he was travelling on the dates alleged, either by using cruise control or having a system to monitor speed, and denied the alleged speeding.
Here Mr Holloway simply cannot say if he was speeding on those occasions. Moreover, for the reasons I have previously expressed, I do not consider generalised propositions of faults with the speeding cameras for instance dating back to 2004-2005 or Mr Holloway’s assertion that he can have no confidence in the reliability of certificates in that context where they are only tested every twelve months as sufficient to give rise to a reasonable possibility that access to the documents sought would materially assist in his defence.
Such generalised assertions are not sufficient to establish a legitimate forensic purpose. Again, in the absence of that test being met, notwithstanding the redrafted and limited scope of the subpoenas sought to be issued, these too must be set aside for failing to establish a legitimate forensic purpose. So I set aside the two subpoenas.

Ground one: alleged misapplication of Lane

Mr Holloway submits under ground one that, although the magistrate correctly referred to the principles stated by Kyrou J in Lane, she departed from the proper application of those principles. In particular, Mr Holloway submits, the magistrate ultimately failed to give due emphasis and weight to what Kyrou J had said in paragraph [21] of Lane. In that paragraph his Honour had, according to Mr Holloway, laid down as a principle that where an accused wishes to rely on a statutory defence — especially where there is only one statutory defence available to the accused — and the defence involves technical information exclusively in the possession of the Crown, then the court should not insist that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence.

Mr Holloway submits that, in the circumstances of the present case, there had in fact been only one statutory defence available to him.[107] He had not been in a position to adduce any direct evidence about the speeds at which the two vehicles had travelled on the days in question. His only hope had been to procure and adduce evidence that the relevant road safety cameras had not been handled in accordance with the Act and the relevant regulations in the period leading up to the alleged offences. More particularly, his only hope had been to put forward evidence that one or more of the cameras had not been ‘tested’ in the prescribed manner or had not been ‘sealed’ in the prescribed manner or had not been ‘used’ in the prescribed manner, within the meaning and for the purposes of ss 81 and 83A of the Act. Such evidence would amount to evidence ‘to the contrary’ of the certifications as to testing, sealing and use set out in the s 83A certificates. This ‘defence’ involved technical information. The information existed. It was exclusively in the possession of the Crown. It was contained in documents of the kind sought. So went Mr Holloway’s argument.
[107]Plaintiff’s written submissions dated 24 October 2014, [46], [48], [100(c)]; plaintiff’s written submissions in reply dated 14 November 2014, especially [8]-[18].

According to Mr Holloway,[108] the magistrate went astray by relying too heavily upon what Mr Holloway describes as obiter dicta contained in paragraph [34] of the judgment of Kyrou J in Lane, as follows:

…The position might have been different if the only basis upon which Mr Lane sought the Documents was a mere assertion that he did not believe that he was travelling at the speed allegedly detected by the three cameras and that the Documents might demonstrate that he was not travelling at the alleged speeds. In such a situation, it might have been difficult for the Magistrate to reach any conclusion other than that Mr Lane was embarking on a fishing expedition and was seeking discovery in a criminal proceeding.

[108]Plaintiff’s written submissions dated 24 October 2014, [87].

Mr Holloway submits that this passage is no more than ‘tentative dicta’ and that the magistrate elevated it to the level of general principle.[109] As a result, he submits, the magistrate was deflected from the application of the ‘key’[110] principles set out in paragraph [21] of the judgment of Kyrou J. Instead of applying those principles, Mr Holloway submits, the magistrate determined that the legitimate purpose test was not made out simply because of the lack of evidence of the type that the accused had adduced in Lane.[111]
[109]Ibid, [88].
[110]Plaintiff’s written submissions in reply dated 14 November 2014, [28].
[111]Plaintiff’s written submission dated 24 October 2014, [89].

Mr Holloway further submits that the magistrate proceeded on the basis that the legitimate forensic purpose test could not be satisfied unless he adduced evidence from which it could be inferred that the road safety cameras were malfunctioning. This was erroneous, Mr Holloway submits, because an accused’s right to compulsory process did not depend upon his or her ability to prove the existence and content of the documents sought.[112] According to Mr Holloway, the magistrate’s approach effectively eviscerated Mr Holloway’s right to compulsory process.
[112]Ibid, citing Alister v The Queen (1984) 154 CLR 404, 451 (Brennan J).

In Mr Holloway’s submission, this asserted error constituted ‘error on the face of the record’ sufficient for the purpose of certiorari.

Ground one cannot succeed.

The magistrate did not fail to give due emphasis and weight to what Kyrou J had said in paragraph [21] of Lane. Nor did the magistrate err in making use of what his Honour had said in paragraph [34]. There is, in truth, no conflict between these two passages of his Honour’s judgment. Nor did the magistrate require evidence from which it could be inferred that the cameras were malfunctioning or secondary evidence of the contents of the documents sought.

In paragraph [21] of Lane, Kyrou J was not purporting to say that, in every case where there is only one statutory defence available to the accused and the defence involves technical information exclusively in the possession of the Crown, the reasonable possibility test does not apply or is deemed to be met. Rather, as his Honour himself explained in the last sentence of paragraph [21], his Honour was saying that the importance of the requested documents to an accused’s ability to establish a defence could ‘inform’ the application of the reasonable possibility test. The more relevant and important the documents are, the less burdensome might be the requirement on the accused to demonstrate a reasonable possibility that the documents might actually assist him or her to defend the charge. But the requirement would remain.

In passing, I would observe that speeding cases based on road safety camera evidence, as a class, should not be regarded as involving the availability of ‘only one statutory defence’. In my view, ss 81 and 83A of the Act do not relate to any matter of defence but rather to the manner of proof of the prosecution’s case. They do not create any ‘statutory defence’, properly so called, to any charge. In any event, it cannot be said, as a general proposition, that there is only one statutory defence to a charge of speeding, even where the Crown relies on camera evidence. It remains open to an accused to put the Crown to proof of the speed, or, if so advised, to actually deny the speed. Further or alternatively, the accused might attack the testing or the sealing or the use of the road safety camera or cameras. (Thus, as part of his argument in this case, the plaintiff himself pointed out that ss 81 and 83A allow for an accused to attack either the speed allegation or the certificated road safety camera allegations or both.) More broadly, the accused might deny being the driver or the responsible owner of the vehicle in question. Other possibilities can be imagined. Of course, if the circumstances of a particular case are such that only one line of resistance is realistically available to the accused, documents relating to that particular line of resistance may become acutely, or even uniquely, relevant. In that sense, they may become very important to the accused. It was cases of that kind to which Kyrou J was adverting in paragraph [21] of Lane (and likewise T Forrest J in Agar v McCabe[113]). But, as Kyrou J himself said in Lane,[114] and as I have observed above, mere relevance to an issue in the proceeding is not sufficient to establish a legitimate forensic purpose. Accordingly, even in cases of the particular kind to which paragraph [21] of Lane refers, there remains a need to show some (reasonable) possibility that the documents might assist in defending the charge. Nothing in Alister v The Queen,[115] as cited by Mr Holloway, or in Lane itself, is to the contrary effect.
[113][2014] VSC 309.
[114][2012] VSC 328, [20].
[115](1984) 154 CLR 404, 451.

Rightly, the magistrate understood paragraph [34] of the judgment of Kyrou J as being merely illustrative of the principles which his Honour had stated in paragraphs [16] to [21] (inclusive). As Kyrou J had correctly recognised in paragraphs [34] to [36] of Lane, the presence or absence of direct evidence as to the speed at which the relevant vehicle was travelling can logically bear upon the assessment of the chance or prospect that documents relating to the condition or history of the road safety cameras might assist the accused to defeat the prosecution’s claim that the cameras had been properly tested, sealed and used on the relevant occasion.

In the present case, the magistrate was simply not satisfied, on the facts and the evidence before her, that the second element of the legitimate forensic purpose test had been met. She distinguished Lane on the facts, as she was entitled to do. As Kyrou J had said in Lane,[116] it is not to the point whether this Court would make the same finding. In Agar v McCabe,[117] which was another speed camera case, T Forrest J went so far as to say that he himself was satisfied that Mr Agar did have a legitimate forensic purpose. But, like Kyrou J in Lane, T Forrest J recognised that that was not the question.[118] As his Honour said (citing Lane at [35]):[119]

Ultimately, the test is one of fact and degree.

T Forrest J accepted that it had been open to the magistrate to arrive at a different conclusion. Accordingly, Mr Agar’s challenge to the magistrate’s refusal to require the production of documents relating to the testing of the road safety cameras was dismissed.

[116][2012] VSC 328, [28]; see also Cia v The County Court of Victoria [2015] VSC 267 (Ginnane J) [30]–[33], cf [46]–[52].

[117][2014] VSC 309, [38].

[118]Ibid [38]–[44].

[119]Ibid [24].

I return again to the present case. The magistrate plainly did not insist on evidence which would provide a basis for a positive inference that the documents sought would satisfy the requirements of the defence. Far from it. Her Honour said that there was no cogent evidence before her that raised ‘any prospect’ that on the two relevant occasions the cameras ‘may’ have been malfunctioning. Contrary to Mr Holloway’s submission,[120] the magistrate did not proceed on the basis that the legitimate forensic purpose test could not be satisfied unless Mr Holloway adduced evidence from which it could be inferred that the cameras were malfunctioning. Likewise, there is no basis for the plaintiff’s suggestion that the magistrate required to see secondary evidence of the actual contents of the documents.
[120]Plaintiff’s written submissions dated 24 October 2014, [90].

Ground one fails.

Ground 2: alleged failure to apply legitimate forensic purpose principles

Under the rubric of ground two, but somewhat inconsistently with the abovementioned parts of his written submissions based on Bailey and on the ‘policy argument’ founded on Ragg, the plaintiff submits that the determination of the ‘validity’ of a subpoena involves a two-stage process.[121] He submits that the first stage is identifying a legitimate forensic purpose. The second stage is considering whether there is a reasonable possibility that the documents sought will materially assist the case of the party which has caused the subpoena to be issued.
[121]Plaintiff’s written submissions dated 24 October 2014, [93].

The plaintiff contends that the magistrate conflated these two stages by applying to the first stage the test applicable to the second stage. The plaintiff refers to the magistrate’s statement that:

In order to establish a legitimate forensic purpose Mr Holloway bears the onus of establishing a reasonable possibility that the documents, if they are in existence, would materially assist in his defence.

In the plaintiff’s written submissions, this ground was elaborated in various ways, but mostly by way of repetition of the points that had already been made under ground one.

Strictly speaking, the question before the magistrate was not about the ‘validity’ of the subpoenas. It seems that the plaintiff’s subpoenas were duly issued under s 43 of the Magistrates’ Court Act 1989, a provision which authorises the Magistrates’ Court or a registrar to issue a witness summons to (among others) any person who appears to the Court or the registrar issuing the summons to be likely to have in the person’s possession or control any documents or things which may be relevant on the hearing of the proceeding. Rather, the question before the magistrate was whether or not to require the production to Mr Holloway of the documents covered by the subpoena. That question fell to be determined in accordance with the principles discussed above. As a practical matter, where a question of that kind is determined in the negative, the form of the order made by the court will commonly be an order that the summons (or subpoena) be set aside. But making an order in that form does not necessarily reflect on the ‘validity’ of the summons (or subpoena) as issued.

At the hearing, I asked counsel for the plaintiff how, assuming that the magistrate had indeed run together the two elements or stages of the process, Mr Holloway might thereby have been disadvantaged. Counsel was unable to identify any resulting disadvantage that might have befallen Mr Holloway.[122] In these circumstances, it seems to me that ground two amounts to little more than a semantic quibble.
[122]Transcript 49–50.

In any event, I do not consider that the magistrate conflated the two stages or elements of the process for considering whether or not to set aside the subpoenas. Reading her Honour’s reasons as a whole, it is plain that she asked herself the correct questions in accordance with the principles summarised in Lane. Any apparent running together of the elements or stages is explicable by the circumstance that the real issue did not reside in the first element (identifying a purpose for the production of the documents) but rather in the second element (determining whether it was ‘on the cards’ or a reasonable possibility that the documents might assist Mr Holloway in defending the charges).

There is no merit in ground two. It fails.

Ground 3: allegedly taking into account irrelevant considerations

Under ground three, the plaintiff contends that the magistrate took into account irrelevant considerations insofar as she had regard to what the plaintiff had had to say about faults with the speeding cameras dating back to 2004-2005. The plaintiff contends that, although issues with road safety cameras on the Hume Highway in 2004-2005 were mentioned (by him) in the proceedings before the magistrate, they were so mentioned merely to emphasise the submissions that Mr Holloway had made about malfunctioning of the cameras in question in 2010. The subpoenas issued on the second occasion did not seek access to information dating back to 2004-2005. Accordingly, the plaintiff submits, the magistrate took account of a consideration that she was bound not to consider when she had regard to the claims of malfunctioning relating to the earlier period.[123]
[123]Plaintiff’s written submissions dated 24 October 2014 [102]–[105].

Like ground two, ground three is devoid of merit. Plainly, the magistrate was fully aware that the subpoenas issued on the second occasion sought only documents relating to the more recent periods. She did not use Mr Holloway’s references to the earlier situation against him. Quite the contrary. She did what Mr Holloway had apparently invited her to do, namely to have regard to the information relating to the earlier period also. However, she was simply not persuaded by the material before her (including that information) that there was a reasonable possibility that the production of the documents actually sought might assist Mr Holloway to throw doubt on either the s 83A evidentiary certificates or the allegations of speeding themselves.

Ground three is rejected.

Conclusion

This proceeding must be dismissed.

I will hear the parties on the question of costs.

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Citations

Holloway v State of Victoria (Department of Justice) [2015] VSC 526

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[2015] VSC 526

30 September 2015