Mackintosh v The Commissioner of Police (NSW)

Mackintosh was the appellant in a criminal proceeding, seeking to appeal against the dismissal of an application to set aside a subpoena issued to the respondent, the Commissioner of Police (NSW). The subpoena sought documents relevant to the credit of a Crown witness, who was not the informant. The appeal was heard in the District Court of New South Wales. The legal issues before the court involved the legitimacy of the subpoena and whether there were reasonable grounds to think that documents relevant to the impugned credit of the Crown witness would be found. The court was required to determine if the subpoena served a legitimate forensic purpose and whether the lower court erred in dismissing the application to set aside the subpoena.

The court found that the subpoena was indeed legitimate and served a forensic purpose. The credit of the Crown witness was an important issue in the case, and the documents sought were relevant to that credit. The court held that there were reasonable grounds to think that the documents would be found, as the content of the documents was known and could be specifically identified. The court also clarified the role of the appellate court in such interlocutory appeals, emphasising the limited scope of review and the need for the appellant to demonstrate a clear error of law in the lower court's decision. The appeal was dismissed, as the court found no such error and upheld the decision of the Local Court to deny the application to set aside the subpoena.

The court's reasoning focused on the importance of the credit of the Crown witness and the specific relevance of the documents to that credit. It was noted that the appellant had not demonstrated that the lower court's decision involved a clear error of law. The court emphasised the limited role of the appellate court in reviewing interlocutory decisions and the need for the appellant to establish a clear error in the lower court's reasoning. The appeal was dismissed, and the decision of the Local Court was upheld, affirming the legitimacy of the subpoena and the grounds for its issuance.