Palmer v Kizon

Michael John Palmer, the applicant, brought an action against John Kizon, the respondent, in the Supreme Court of Western Australia. The respondent has been indicted on two counts: the first count charges him with conspiracy to possess cannabis with intent to sell or supply it to another, and the second count charges him with attempting to possess cannabis for that purpose. The case is set to be heard by the court and a jury from 1 November 1999. The respondent seeks the production of five affidavits sworn by a former detective of the Australian Federal Police in support of applications for the issue of warrants authorising the use of listening devices and telephone intercepts. The applicant argues that the subpoena should be set aside because there is no legitimate forensic purpose for its issuance and it was issued for the purpose of "fishing" and is an abuse of process. The affidavits are also subject to public interest immunity.

The court had to decide whether the subpoena should be set aside or not. The court held that the warrants were issued by a Federal Court Judge and that the issue of the warrant was an administrative and not a judicial act. The court can review the issue of the warrant but cannot enquire into the sufficiency of the material placed before the issuing authority to support it or adjudicate as to whether the issuing authority was in fact satisfied as to any statutory requirements. The court also held that there is no ground for challenging the validity of the warrants as there is nothing to make it appear that any of the affidavits will tend to show that the issue of any of the warrants was invalid. The court held that examining the affidavits would serve no purpose other than to find out whether the respondent has a case. The court held that there is no legitimate forensic purpose to be served by the subpoena and it will be set aside.

The court set aside the subpoena and returned the confidential documents to counsel in envelopes unopened and sealed as they were when they were received.