R v McDermott (Ruling No 6)

[2015] VSC 649

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0195

THE QUEEN
v
CRAIG McDERMOTT	Accused
and
SALVATION ARMY WESTCARE	Subpoena addressee

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2015
DATE OF RULING:	17 November 2015
DATE OF PUBLISHED RULING:	18 November 2015
CASE MAY BE CITED AS:	R v McDermott (Ruling No 6)
MEDIUM NEUTRAL CITATION:	[2015] VSC 649

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CRIMINAL LAW – Subpoena for production of documents – Whether it is ‘on the cards’, or a ‘reasonable possibility’ that the documents sought under the subpoena ‘will materially assist the defence’ – Whether fishing exercise – Whether legitimate forensic purpose – Limited production ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane QC with Ms E Ruddle	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC with Mr J Desmond	Doogue O’Brien George
For Salvation Army Westcare	Mr C Mandy	Sayer Jones

HIS HONOUR:

1. The accused, Craig McDermott, has filed a subpoena for the production of documents addressed to the Salvation Army Westcare, 34 Devonshire Road, Sunshine.

1. It seeks production of the ‘Care File’ (including but not limited to case and file notes, reports from internal/external bodies and medical documentation) relating to Alira McGregor, a potential Crown witness in this case.

1. Miss McGregor is now 15 years of age.  She was an eye-witness to the alleged murder of Fiona Warzywoda by Mr McDermott.  The circumstances surrounding Ms Warzywoda’s death are set out in my first ruling at paragraphs [2]–[14].[1] 

   [1]R v McDermott (Ruling No 1) [2015] VSC 615.

1. Miss McGregor participated in a VARE interview on 2 May 2014.

1. Miss McGregor was not included in the list of witnesses to be relied upon by the prosecution and her VARE interview became part of a Notice of Additional Evidence filed at a Directions Hearing on 13 October 2015. 

1. It is not in issue that Miss McGregor has been in the care of Westcare for a number of years prior to 16 April 2014.  At the time of the alleged murder Miss McGregor was ‘getting ready to go to Access,’[2] in Devonshire Road.

   [2]VARE of Miss McGregor from 2 May 2014.

1. The principles associated with an application such as this are as follows:

(a)   It is necessary for the party at whose request the witness summons was issued to identify (expressly and precisely) the legitimate forensic purpose for which access to the documents is sought.

(b)   The identification of such a legitimate forensic purpose may be considered by the court without inspecting the documents sought to be produced, however in an appropriate case it may be necessary to inspect the documents.

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

(d)   A ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted.

(e)    The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.  There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.

(f)     A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough.

(g)   In criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.

(h)   Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[3]

[3]Messade v Baires Contracting Pty Ltd [2011] VSC 56; Woolworths Ltd v Svajcer [2013] VSCA 270.

1. The issues for determination are as follows:

(a)        whether Mr McDermott has shown that there is legitimate forensic purpose in seeking to have the documents produced;

(b)        whether it is ‘on the cards’ that there is material within the documents which might assist the defence case; and

(c)        as a corollary of propositions (a) and (b), whether this is merely a fishing expedition.

1. I will not repeat the helpful submissions (both written and oral) I received from both counsel.

1. For the reasons that follow, I think there should be limited production of documents by Westcare. 

1. First, it would be of no utility to strike out the subpoena on the basis that its terms were too wide – which they patently are.  This would be a triumph of form over substance as, undoubtedly, a fresh subpoena with a more refined nuance would be issued. 

1. Second, my reasons for granting limited production (which I will identify precisely in a moment) are as follows:

(a)        There is a legitimate forensic purpose in relation to production of documents relating to Miss McGregor’s attendance at Access (which presumably, is in Devonshire Road) and has some connection with Westcare.  It is a legitimate enquiry as to whether there is any record of Miss McGregor’s description of the events that occurred that afternoon (particularly given that this relates to a critical matter in this trial).  I also accept that it is on the cards that there may be such a record.

(b)        

The question of a legitimate forensic purpose in respect of documents relating to Miss McGregor’s ‘reliability’ is a very different issue.  The defence request for access to all the files concerning Ms McGregor is fishing and, probably, oppressive.  However, if it is confined to a specific period in proximity to

16 April 2014 it may have a legitimate forensic purpose – establishing whether at the time of her observations there was anything in the records which might assist the defence as to her reliability. 

(c)        The defence argues that perusal of the VARE tape demonstrates that reliability is a live issue and that this is a legitimate forensic enquiry.  Assertions by counsel for the defence that there may be evidence of drug use or mental instability does not help.  This is typical of a fishing expedition.  Rather, the question is whether it is on the cards that there may be material relevant to her reliability at or around the time of the alleged murder that should be produced. 

1. Having seen the VARE tape, and accepting that Miss McGregor is a critical witness for the prosecution, I am, by the thinnest of margins, persuaded that it is on the cards that there may be material relevant to her reliability.

1. However, the request for the production of documents cannot be open ended and must have a temporal relevance to 16 April 2014.

1. Subject to hearing from counsel as to the appropriate form of order, I propose to make the following orders:

That Westcare produce from the ‘Care File’ of Miss McGregor:

(a)   any documents containing a description of the stabbing of Ms Warzywoda on 16 April 2014; and

(b)   any documents relating to Miss McGregor’s eye sight or mental health produced in the period of six months prior to 16 April 2014.

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