Najask Pty Ltd v Palerang Council

[2009] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Unomedical Pty Limited [2009] NSWLEC 39
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Unomedical Pty Limited
FILE NUMBER(S):	50046 of 2008
CORAM:	Pain J
KEY ISSUES:	PRACTICE AND PROCEDURE :- request for further and better particulars of elements of the offence - further particularisation not required Practice and Procedure :- whether defendant's Notice to Produce had to be complied with - documents sought for purpose of pursuing claim of abuse of process by prosecutor - legitimate forensic purpose not demonstrated - not "on the cards" that documents will materially assist defendant's case
LEGISLATION CITED:	Occupational Health and Safety Act 2004 (Vic) Protection of the Environment Operations Act 1997 s128(2) Uniform Civil Procedure Rules 2005 Pt 2 r 2.1
CASES CITED:	Attorney General for NSW v Chidgey (2008) 182 A Crim R 536 Barton v the Queen (1980) 147 CLR 75 Cahill v New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 CSR Limited v EPA (2000) 1000 LGERA 334 Director-General, Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Environment Protection Authority v Waight No 2 (1999) 109 A Crim R 288. Johnson v Miller (1937) 59 CLR 467 KRM v R (2001) 206 CLR 221 NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 R v Associated Northern Collieries (1910) 11 CLR 738 R v Saleam (1989) 16 NSWLR 14 R v Saleam [1999] NSWCCA 86 R v Saunders (1990-91) 10 Petty Sessions Review 4537
DATES OF HEARING:	30 March 2009
DATE OF JUDGMENT:	31 March 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Mr P Barley SOLICITOR Department of Environment and Climate Change DEFENDANT Mr E Lee SOLICITOR Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

31 March 2009

50046 of 2008 Environment Protection Authority v Unomedical Pty Limited

JUDGMENT

1 Her Honour: I have before me for determination two Notices of Motion one dealing with particulars sought by the Defendant and one dealing with a Notice to Produce served by the Defendant on the Prosecutor.

2 The Defendant is charged with an offence under s 128(2) of the Protection of the Environment Operations Act 1997 (the POEO Act) that it committed an offence that as the occupier of premises at 11-17 Wilmette Place, Mona Vale (the premises) it failed to carry on an activity by such practicable means as may have been necessary to prevent or minimise air pollution where no emission standard or rate has been prescribed for the air impurity. The offence concerns in part the emission of ethylene oxide from the premises for a period of six years commencing July 2002.

Statement of agreed facts

3 A statement of agreed facts was handed up which set out useful background as follows:

4 The Defendant is a company specialising in the manufacturing of single-use medical instruments and equipment and occupies the premises at 11-17 Wilmette Place, Mona Vale. It carries on an activity on the premises which includes the operation of a sterilising facility for medical instruments and equipment (the facility).

5 The facility commenced operation on or about 1 January 2002. Ethylene oxide was used in each sterilising cycle. During the charge period, there was no standard or rate prescribed for the emission of ethylene oxide under NSW legislation.

6 On 10 November 2006, Pittwater Council’s environmental health officer, Mr Nick Ives, received a telephone call advising that ethylene oxide was being used at the premises.

7 On 26 July 2007 Pittwater Council issued the Defendant with a prevention notice under s 96 of the POEO Act (the first prevention notice). The Defendant ceased operations at the facility in response to the prevention notice.

8 On 16 August 2007 Pittwater Council issued the Defendant with a second prevention notice under s 96 of the POEO Act (the second prevention notice). Prior to the Council serving the Defendant with the first and second prevention notices there was extensive consultation between the Department of Environment and Climate Change (DECC), Pittwater Council and the NSW Department of Health in relation to the emission of ethylene oxide. The consultation process lasted until well after the second prevention notice was served. During that consultation process, all those agencies sought information which the Defendant provided voluntarily, including expert information which it provided at its own cost.

(i) Notice of Motion re Particulars

9 The Defendant has filed a Notice of Motion seeking an order that the Prosecutor provide a response to its request for further and better particulars dated 14 August 2008 pursuant to Pt 2 r 2.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). This rule provides:

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

10 Particulars are sought by the Defendant in relation to the element of the offence particularised by the Prosecutor in the following way in the summons:

(d) Manner of contravention

The Defendant carried on the activity without such practicable means necessary to prevent or minimise air pollution, such as:
1. Absorption and/or hydrolosis; or
2. Oxidation

Defendant’s submissions and evidence

11 The Notice of Motion was supported by an affidavit of Elizabeth Wild, solicitor, dated 22 January 2009. The following documents were annexed to her affidavit:

a) A letter dated 14 August 2008 from the Defendant’s solicitors requesting further and better particulars;

b) The Prosecutor’s response to the request in a letter dated 11 September 2008 setting out the Prosecutor’s belief that many of the questions asked were not proper or necessary requests. The letter states that the details of the case the Prosecutor seeks to make should be known to the Defendant in addition to what has been provided already. It then provides several pages detailing the Prosecutor’s case. It is not in the format or to the extent sought by the Defendant’s solicitor’s request. The letter attaches a document authored by the National Occupational Health and Safety Commission entitled “Safe Use of Ethylene Oxide in Sterilisation/Fumigation Processes” and dated April 1992;

c) The Defendant’s solicitor’s response to the Prosecutor’s letter maintaining the Defendant’s request for further and better particulars in a letter dated 26 September 2008;

d) A further request for a response to the request for particulars by the Defendant’s solicitors to the Prosecutor dated 10 October 2008;

e) A letter from the Prosecutor to the Defendant’s solicitors dated 17 October 2008 providing a response to the particulars requested as stated in paragraphs 8, 9, 12, 15, 16 and 18 of the letter sent by the Defendant’s solicitors dated 26 September 2008. Further detail of the Prosecutor’s approach to the meaning of “practicable” was provided to the effect that the Prosecutor’s primary submission will include that the ordinary meaning includes the definition in the Macquarie Dictionary:

capable of being put into practice, done, or effected especially with the available means or with reason or prudence; feasible.

12 The Defendant also tendered a document (which became exhibit 1) produced by the Department of Environment and Conservation (DECC) dated August 2005 entitled “Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales”.

13 Paragraphs 5, 6 and 7 of the request for particulars are not pressed.

Defendant’s submissions

14 The Defendant argued that the criteria for its detailed request for particulars is based on the Prosecutor’s evidence as found in the affidavit of Mr John Court dated 30 January 2009 which refers to the “approved methods for the modelling and assessment of air pollutants in NSW” (exhibit 1). At p 24 it refers to the need to consider technical, logistical and financial considerations. In his report Mr Court refers to the definition of “practicable” as:

reasonably practicable having regard to, amongst other things, to local conditions and circumstances, to financial implications and to the current state of technical knowledge.

15 Lengthy particulars are sought as to how all the criteria of practicability in relation to local conditions and circumstances, financial, technological and logistical considerations apply to the implementation of the methods of absorption and/or hydrolysis or oxidation in relation to the Defendant’s operations. Reliance was placed on CSR Limited v EPA (2000) 1000 LGERA 334 at [66], and Director-General, Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234 at 239 in the Court of Criminal Appeal. It was submitted that there had not been correspondence between the parties in this matter, unlike in CSR where it was noted by Pearlman J that there had been. A greater degree of particularity is required, relying also on KRM v R (2001) 206 CLR 221.

Prosecutor’s submissions

16 The Prosecutor tendered a bundle (exhibit A) containing, inter alia:

(a) An expert report produced for the Prosecutor by Mr Court dated 27 June 2008 dealing with what practicable means were necessary for the prevention or minimisation of air pollution at the Defendant’s site;

(b) A letter dated 4 April 2008 from the Defendant’s solicitors to the Prosecutor responding to the Prosecutor’s notice to provide information and records pursuant to s 193 of the POEO Act.

17 The Prosecutor opposed the provision of the particulars sought. Particulars do not have to be supplied in the form requested by the Defendant. The Crown must inform the defendant clearly of the case against it: R v Saunders (1990-91) 10 Petty Sessions Review 4537 per Gleeson CJ. A defendant must receive sufficient information to ensure a fair trial and to guard against “surprise” but is not entitled to be told the mode by which the case is to be proved against it: R v Associated Northern Collieries (1910) 11 CLR 738 per Isaacs J at 740-741 and the authorities cited therein. The Defendant is impermissibly seeking particulars of the mode of proof of the offence. The summons identifies the particular act, matter or thing alleged as the foundation of the charge per Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489, see also Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 per Gleeson CJ at 484.

18 The Prosecutor has provided more than sufficient information already, easily as much as was considered adequate in CSR. The questions do not go to the allegations in the summons. There is no definition of “practicable means” in the POEO Act, let alone one that requires considering the technical, logistical, financial, local considerations and local circumstances.

19 On practicable means, the Prosecutor’s case will be:

(i) it can rely on evidence of change in the systems of work or measures introduced by the defendant after the charge period;

(ii) in the absence of statutory definition, the meaning of “practicable” is a literal one to be given its ordinary meaning;

(iii) alternatively, the Prosecutor will rely on Mr Court’s report pp 14-15, 24- 29 and the documents referred to there.

Requesting particulars of “practicable” is raising an issue involving a question of law.

20 In Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, involving a prosecution under the Occupational Health and Safety Act 2004 (Vic), the relevant Act defined “practicable” to include the cost of implementation of measures. Dawson, Toohey and Gaudron JJ (Brennan J generally agreed and Deane J agreeing) held at 261:

One consideration tells against overmuch significance being given to the relative knowledge of an employer and an informant. The questions of safety and practicability, in many cases, raise issues of common sense rather than special knowledge: see Neill v NSW Fresh Food & Ice Co Pty Ltd (1963) 108 CLR 362, per Taylor and Owen JJ at 368. See also Australian Oil Refining Co Ltd v Bourne at 193-194. In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide "so far as is practicable" a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge: see Jones v Dunkel (1959) 101 CLR 298.

A consideration of the relative knowledge of an employer and an informant does not, in our view, provide an indication that the defendant bears the onus of proof on the issue of practicability in a prosecution for an offence under s 21 of the Act. In particular, the subject matter of practicability is not necessarily new or different from the subject matter of a rule requiring that a workplace be safe. So much is evident from par (a) of the definition of "practicable", which looks to "the severity of the hazard or risk in question". And, although matters pertaining to cost and suitability of the means of avoiding a risk or hazard may be peculiarly within the knowledge of the defendant, the question of practicability does not depend on facts peculiarly within the knowledge of a defendant in the same way as does a question whether a proscribed act was done, in the terms used in Edwards, "in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". That is because questions of cost and suitability are but aspects of the overall question of practicability. And they are aspects upon which, in a good many cases, the practical evidentiary burden will, in any event, fall on a defendant for, as earlier indicated, evidence as to the nature of the risk, the cause of the risk or means by which the risk may be avoided will often be all that is necessary to ground an inference that practicable means of avoiding the risk were not taken.

21 The approach in Chugg supports the Prosecutor’s approach to what “practicable” means. The Defendant’s submission that it requires the Prosecutor to stand in the Defendant’s shoes and determine against all the criteria specified in the request for particulars, including financial, that a particular approach is practicable is not maintainable. The Prosecutor’s solicitor’s letter of 11 September 2008 defined available “practicable means” and “as may be necessary” for the purposes of that element of the offence. The Defendant knows the case and evidence it must meet.

Finding on particulars

22 The Court of Criminal Appeal in Greentree at [13] held that the first instance judge correctly stated the principle of law applicable to the supply of particulars of a summons in applying Dixon J in Johnson v Miller at [14] that the particular act or matter alleged as the foundation of the charge must be known to the defendant. McHugh J in KRM at [15] held that an accused person is entitled to be given as high a degree of particularity of the element of a charge as the subject matter will bear. Kirby J also stated in KRM at [96] that a high degree of specificity is required.

23 The correspondence attached to the affidavit of Ms Wild and summarised above in par 7 shows that there has been lengthy correspondence between the parties and the provision of particulars concerning the offence by the Prosecutor’s solicitor (as there was in CSR). I consider the Prosecutor’s obligation to particularise the elements of the offence with specificity have been met by the extensive responses already supplied by the Prosecutor. The Defendant is essentially seeking particulars from the Prosecutor for a case which the Prosecutor is not seeking to make. Further particularisation is not required additionally for the reasons provided by the Prosecutor’s counsel and set out at par 11, 12, 14 and 15. The order sought in the Defendant’s Notice of Motion is dismissed.

(ii) Notice of Motion re Notice to Produce

24 The Prosecutor filed a Notice of Motion on 21 January 2009 seeking an order that several paragraphs of the Defendant’s Notice to Produce served on the Prosecutor on 4 September 2008 be set aside under the UCPR Pt 2 r 2.1. The paragraphs in dispute have been clarified since the Notice of Motion was filed and are now 1, 2, 3, 4(a)-(f)(i), 6, 13 and 14.

25 An affidavit or Ross Fox affirmed 14 November 2008 was read for the Prosecutor. Annexed to Mr Fox’s affidavit were the following documents:

(a) The Defendant’s Notice to Produce dated 3 September 2008 which was served on the Prosecutor.

(b) The Prosecutor’s response to the Notice to Produce in a letter dated 11 September 2008 setting out the Prosecutor’s objections to the Notice.

(c) The Defendant’s solicitor’s response dated 26 September 2008 to the Prosecutor’s letter.

(d) A letter from the Defendant’s solicitors to the Prosecutor dated 10 October 2008 requesting the documents referred to in the Notice to Produce be produced.

(e) The Prosecutor’s response to the Defendant’s solicitor’s letter dated 17 October 2008 which maintains the objections to the Notice to Produce and raising further objections as to production.

(f) The Defendant’s solicitor’s response dated 23 October 2008 claiming the Notice is not oppressive and maintaining the request that the Prosecutor comply.

26 Two paragraphs of an affidavit of Mr Bernard Stewart sworn 11 September 2008 were read for the Prosecutor. Mr Stewart stated that ethylene oxide is categorized by the World Health Organization as a cancer-causing hazard. Scientific data limit specification of the quantitative risk in exposure to ethylene oxide though this does not reduce the imperative to prevent human exposure via practicable measures.

27 Several paragraphs of the Prosecutor’s affidavits were read by the Defendant:

(i) Three paragraphs of the affidavit of Mr Nicolas Ives affirmed 4 July 2008 were read. Mr Ives attested that he was telephoned by an unidentified male on 10 November 2006 who stated “Unomedical is using ethylene oxide with the gas being pumped into the air”. On 17 November 2006 Mr Ives telephoned DECC seeking advice on ethylene oxide. He had a conversation with Mr Aleksandr Todoroski of DECC’s Air Policy Section. Mr Todoroski directed Mr Ives to the document entitled “Approved Methods for the Modelling and Assessment of Air Pollutants in NSW 2005”. This specified the standards for ethylene oxide in the air should not exceed 0.0018 ppm.

(ii) Paragraph 7 of an affidavit affirmed 27 June 2008 by Ms Amiette Wakenshaw was read for the Defendant. Ms Wakenshaw stated she had a conversation with Mr Russell Harrison, Chief Investigator at DECC on 8 November 2007 concerning the investigation in the alleged air pollution from the Unomedical premises. Mr Harrison instructed Ms Wakenshaw to assist Investigator Janice Taylor and Regional Officer James Goodwin.

(iii) Paragraphs 7 and 10 to 13 of an affidavit affirmed 12 August 2008 by Mr James Goodwin were read for the Defendant. Mr Goodwin attested that he issued a s 191 notice to the Department of Health on 22 April 2008 for the production of information and records regarding a definitive exposure assessment report for the Unomedical site, recent meeting minutes and associated documents for an expert panel convened by the Department of Health.

28 In addition to affidavit evidence, the Defendant tendered several documents:

(i) An email from Mr Aaron David, NSW Manager of EML Air to Ms Sarah Mansfield dated 4 February 2009 stating that Mr Davis is unable to assist the Defendant due to prior personal involvement in the Unomedical case (exhibit 2).

(ii) A bundle of documents containing:

(a) An email from Giselle Howard of DECC to Ms Vicky Shephard of the Department of Health dated 23 July 2007 recommending the Defendant be restricted in its sterilising operations and that further information should be provided by the Defendant to agencies involved in the investigation on request. The email states that an expert panel will be convened by the Department of Health to investigate the matter;

(b) An email from Ms Howard to Mr Mark Ferguson, General Manager of Pittwater Council dated 24 July 2007 stating the Department of Health’s advice that emissions from Unomedical should cease immediately. The email refers to the Defendant’s new emissions profile and DECC’s support for the commencement of limited sterilising. Ms Howard recommends Council advise the Defendant that further information may be required on a needs basis and that the Department of Health will be convening an expert panel to investigate the matter;

(c) A press release from Mr Rob Stokes, Member for Pittwater dated 14 August 2007 reporting the Leader of the Opposition’s concerns about emissions from the Defendant’s site;

(d) A further press release by Mr Stokes dated 26 September 2007 reporting that the issue of ethylene oxide emissions had been raised in Parliament;

(e) The Pittwater Local Government Area Cancer Incidence Study 1996 to 2005;

(f) Questions and Answers for the First Session of the 54th Parliament of NSW dated 7 November 2007 (exhibit 3).

(iii) A letter from Ms Denise Robinson, Chief Health Officer of the Department of Health to Mr Chris Hunt, Acting General Manager of Pittwater Council dated 25 July 2007 (exhibit 4). The letter states the concerns of the Department of Health at the level of emissions from the Defendant’s site.

29 The Defendant relied on the limited paragraphs read in the Prosecutor’s affidavits set out above to demonstrate that the Prosecutor had sent a number of s 191 and 193 notices under the POEO Act to various departments and Pittwater Council. Essentially the Defendant was seeking to establish with the affidavit and documentary material tendered that there had been a great deal of contact between the Prosecutor and other state government agencies and Pittwater Council. Its solicitor also referred to media releases by the Member for Manly about the premises to demonstrate there was political involvement in the issue generally.

30 The Defendant was asked by me to clarify what the Notice to Produce in par 1, 2 and 3 was directed to given that the Prosecutor has filed all the evidence on which it intends to rely, subject only to whether further expert evidence is filed in reply to the Defendant’s expert evidence due on 30 March 2009. The matter is set down for hearing in June 2009. Paragraph 1 seeks all documents relating to ethylene oxide emissions from the premises from 1 January 2002 to date. The Defendant’s solicitor advised that it was a catch all provision. Paragraphs 2 and 3 seek any documents the Environment Protection Authority (the EPA) has on the assessment of environmental risk from ethylene oxide. After discussion, paragraphs 2 and 3 were not pressed by the Defendant.

31 Paragraph 4 seeks all documents sent between Pittwater Council, the office of the Minister for the Environment and the Minister assisting the Minister for the Environment, the Department of Health, the office of the Minister for Health, the office of the member for Pittwater, the Northern Sydney Central Coast Area Health Service and the Defendant held by the Prosecutor. Paragraph 6(a) and (b) seeks all documents held by the Prosecutor in relation to the two prevention notices served by the Council under s 96 of the POEO Act. The reason given for the documents sought in par 4 and 6(a) and (b) in the written submissions was the legitimate forensic purpose of seeking documents that relate to the Prosecutor’s understanding and knowledge of the health and environmental impacts, why their understanding changed, and their knowledge of the agreement to install an abatement system.

32 In oral submissions the purpose for which the document sought was changed and it related to finding out whether there were grounds for an application based on an abuse of process based on the delayed filing of the summons commencing the prosecution on 14 July 2008. It was submitted that the EPA became aware of the circumstances giving rise to the charges being laid when they received the report produced by the Defendant detailing their ethylene oxide emissions from Pittwater Council in June or July 2007. The issue arises of what happened in the intervening period before the summons was filed and why there was delay in filing the summons. The documents tendered in exhibit 3 include an email from an employee in the EPA to an employee at the Department of Health concerning whether there should be limited operation of the facility (see par 24(ii)(a)). That email to the Department of Health employee suggests that the EPA permitted the facility to continue to operate on the basis of one cycle per day. It was prevented from continuing by a prevention notice issued by Pittwater Council three days later. There is a possible issue concerning abuse of process by the Prosecutor in filing the summons for which the documents sought are required. It is not known if such documents exist. No argument will be mounted however that the summons was filed out of time or is statute barred.

33 Paragraph 6(c) seeks all documents concerning the investigation of the Defendant for the breach of s 128(2) of the POEO Act. According to the written submissions those documents are also sought in relation to the abuse of process argument but in oral submissions this provision was described as a catch all provision similar to the documents sought in paragraph 1.

34 Beazley J (James and Kirby JJ agreeing) in Attorney General for NSW v Chidgey (2008) 182 A Crim R 536 referred to the judgment of Simpson J in R v Saleam [1999] NSWCCA 86 at [11] with approval at [64]. The judgment in Chidgey also referred to Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414 which identifies the relevant test to be whether it is “on the cards” that documents materially affect the defence. That is a higher threshold than the test in Chidgey and Alister should be applied.

35 The Defendant admitted that par 13 and 14 which seek documents which concern whether complaints were received from the public about ethylene oxide emissions from the premises were relevant to sentencing. (This suggests that it is not appropriate that these matters be sought in the Notice to Produce now given that the parties are presently preparing for a conviction hearing and the Defendant has not been found guilty.)

Prosecutor’s submissions

36 The Prosecutor relies on the last paragraphs of the affidavit of Mr Stewart to emphasise the significance of managing ethylene oxide due to its potential risk to human health. The Defendant’s solicitor’s submissions make clear that the Notice to Produce is largely a fishing expedition particularly in relation to the possible abuse of process application given statements such as “we don’t know whether the prosecutor has any documents”. That is not a legitimate forensic purpose, relying on Cahill v New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187. If the email in exhibit 3 to the Department of Health from the employee of the EPA is read (par 24(ii)(a)) it does not do what the Defendant claims it does, namely the EPA was permitting the facility to continue operating. Chidgey contains the correct test to apply at [64]-[70].

37 The Defendant cannot meet the second step in Chidgey (that it is on the cards that the documents materially assist a case) as its arguments are directed to the exercise of the prosecutorial discretion whether to commence proceedings against the Defendant. It is not appropriate for the Court to consider whether a prosecution should be commenced, per Gibbs ACJ and Mason J in Barton v the Queen (1980) 147 CLR 75 at 94-95.

38 Further, the Notice to Produce is too widely drawn. R v Saleam (1989) 16 NSWLR 14 rejected a subpoena which sought every document relating to the investigation and prosecution, which par 1 and 6(c) also seek. It amounts to impermissible discovery and is not permissible in a criminal matter. NSW Commissioner of Policev Tuxford & Ors [2002] NSWCA 139 while a civil case is also applicable to this criminal matter. “Fishing” is not permitted, see also Environment Protection Authority v Waight No 2 (1999) 109 A Crim R 288.

39 In relation to par 13 and 14, there is no legitimate forensic purpose made out.

40 In relation to specific issues raised by the Defendant’s submissions, further inquiries are being made about Mr Davies, referred to in par 21 of Defendant’s submissions and the email in exhibit 2, and the outcome of the inquiries will be advised to the Defendant by the end of the week. Also concerning the complaint about the Goodwin affidavit that not all documents obtained from various departments have been included, the Prosecutor’s solicitor’s instructions are that they have been. In any event the Defendant can ask to see the documents produced to the Prosecutor to see for itself and this has in fact occurred.

Finding

41 I must apply the decision in Chidgey. Beazley JA (James and Kirby JJ agreeing) held at [64 – 65]:

The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:
“The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.”


(I will refer to this case as R v Saleam [1999].)

The genesis of the expression “on the cards” is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister, the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim’s home. The case was notorious – the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO’s investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds.

42 I do not consider a distinction should be drawn between the test required in Chidgey and that in Alister, contrary to the Defendant’s solicitor’s submission.

Paragraphs 4 and 6(a) and (b)

43 Relevance alone is not sufficient to establish that documents should be produced in criminal proceedings. It is also necessary to establish that the documents sought do serve a legitimate forensic purpose. I agree with the Prosecutor that this has not been demonstrated in relation to par 4 and 6(a) and (b). Nor is it demonstrated that “on the cards” the documents will materially assist the Defendant’s case. The criteria required in Chidgey have not been met.

44 As identified in Tuxford mere suspicion is not sufficient to ground a notice to produce (in that case a subpoena) as that would amount to allowing a fishing expedition. The submissions of the Defendant’s solicitor that the documents sought are to determine if there has been an abuse of process in the commencement of these proceedings suggest that this is a fishing expedition. The email to the Department of Health in exhibit 3 does not provide support for the Defendant’s submissions on abuse of process. A Notice to Produce cannot be used as a substitute for discovery, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 referred to in Tuxford at [19]. While both cases concern the civil context those statements apply in the circumstances before me.

45 Paragraphs 4 and 6(a) and (b) are not based on a legitimate forensic purpose and are a fishing expedition and need not be complied with.

Paragraphs 1 and 6(c)

46 Paragraphs 1 and 6(c) are too wide and essentially operate as catch all provisions for anything that is not otherwise required to be produced under the Notice to Produce. Whether they have any legitimate forensic purpose is not demonstrated and in the absence of doing so these should be struck out, an approach consistent with that in R v Saleam and Waight No 2.

Paragraphs 13 and 14

47 The purpose for which the documents are sought in par 13 and 14 has not yet arisen in this prosecution. The request is premature. These paragraphs also need not be complied with.

48 The Prosecutor’s challenge to par 1, 2, 3, 4 in part, 6, 13 and 14 of the Notice to Produce is successful and these should be struck out.

Orders

49 The Court makes the following orders:

1. The Defendant’s Notice of Motion filed 23 January 2009 is dismissed.
2. In relation to the Prosecutor’s Notice of Motion filed 21 January 2009 paragraphs 1, 2, 3, 4(a)-(f)(i), 6, 13 and 14 of the Defendant’s Notice to Produce served on the Prosecutor on 4 September 2008 are set aside.
3. Costs in the cause.