R v Pepper - [2021] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEPPER
[2021] SADC 75
Ruling of his Honour Judge Slattery
29 June 2021
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
In 2016, a Detective Brevet Sergeant Bailetti (DBS Bailetti) wrote a Facebook post announcing that he suffers PTSD and urging all other sufferers to seek assistance. At that time, he was a serving police officer.
In 2018, DBS Bailetti was involved in the investigation of the conduct of the defendant. In the course of that investigation, he formed a suspicion for s 68(1)(a)(ii) of the Summary Offences Act 1953 that a Mitsubishi Outlander vehicle which the prosecution contends was possessed by the defendant contained an item, the possession of which constituted an offence, namely a firearm. The motor vehicle was seized and searched and in it, police found in a secret compartment a firearm, ammunition and $45,100 in cash. Also located within the vehicle were other records associated with the defendant.
The defendant was charged with possession of a firearm without a licence and other offending. He has entered pleas of not guilty. The defendant challenges both the search of the vehicle and whether he was in possession of the firearm.
The trial was set for November 2020. DBS Bailetti is one of the principal witnesses in the prosecution case.
On 13 October 2020, the Director of Public Prosecutions informed the court and the defendant that, based upon an assessment made by a psychologist, DBS Bailetti was not fit to give evidence in the trial to be held in October 2020 and that he would be unfit for work for between 3 and 6 months. As a result, the trial was adjourned until 13 September 2021 for hearing.
On 8 of November 2020, the defendant sought leave to issue a subpoena in the following terms:
1. All medical, psychological and Return to Work SA documents, notes or records associated with Detective Brevet Sergeant Samuel Mark Bailetti’s inability to give evidence in the vacated trial of the Defendant.
2. Any document, note or record of any current investigation or other finding under the Police Complaints and Discipline Act 2016, relative to Detective Brevet Sergeant Samuel Mark Bailetti, including matters dealt with by way of:
a. Management Resolution per Part 3 of the Police Complaints and Discipline Act 2016;
b. Presenting a ‘Notice of Allegation’ to the Police Disciplinary Tribunal;
c. Any action described in s 26(1)(d)-(n) of the Police Complaints and Discipline Act 2016.
3. Any document, note or record of any finding under the Police (Complaints and Disciplinary Proceedings) Act 1985, relative to Detective Brevet Sergeant Samuel Mark Bailetti, including matters dealt with by way of action described in s 39 of the Police (Complaints and Disciplinary Proceedings) Act 1985.
4. Any document, note or record of any ‘minor misconduct’ per Division 3 of the Police Act 1998, prior to 4 September 2017, relative to Detective Brevet Sergeant Samuel Mark Bailetti.
Whether leave should be granted to issue the subpoena to the Commissioner of Police.
Held: the defendant’s application is refused.
Firearms Act 2015 (SA) s 6, s 9, s 31; Summary Offences Act 1953 (SA) s 68; Police Complaints and Discipline Act 2016 (SA) s 44; Director of Public Prosecutions Act 1991 (SA) s 10A; Magistrates Court Act 1991 (SA) s 20; Justices Act 1921 (SA) s 23; Criminal Procedure Act 1921 (SA) s 126, referred to.
R v Forrest [2016] SASCFC 76; Carter v Hayes (1994) 61 SASR 451; Hunt v Wark (1985) 40 SASR 489; R v Saleam (1989) 16 NSWLR 14; Madison v Goldrick [1976] NSWLR 651 ; Alister v The Queen (1984) 154 CLR 404; R v Polley (1997) 68 SASR 227 ; White and Others v The State of South Australia and Others (2007) 96 SASR 581; Australian Federal Police v XYZ (2015) 123 SASR 274 , discussed.
R v Ferri (2002) 220 LSJS 155 ; Goldsmith v Newman (1992) 59 SASR 404 ; Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; Beadle v Director-General of Social Security (1985) 60 ALR 225 ; Jess v Scott (1986) 12 FCR 187; 70ALR 185; Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510; Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245; Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and De Pietro [2011] VSC 3 ; R v Mokbel (No 1) [2005] VSC 410 ; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 ; Re Don [2006] NSWSC 1125; Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 ; Alister v The Queen (1984) 154 CLR 404 ; DPP v Selway (No 2) (2007) 16 VR 508 ; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 ; R v Mokbel (No 1) [2005] VSC 410; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 ; Attorney-General (New South Wales) v Chidgey (2008) 182 A Crim R 536 ; Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 ; Sankey v Whitlam (1978) 142 CLR 1 ; Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR 310; Felice v County Court of Victoria and Anor [2006] VSC 12; Tomasevic v Travaglini [2007] VSC 337, considered.

R v PEPPER
[2021] SADC 75

R v PEPPER

The defendant, Luke Anthony Pepper is charged on Information for Arraignment dated 6 December 2019 with the following offences:
First Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Luke Anthony Pepper on the 16th day of August 2018 at Para Hills West, possessed a Category H firearm without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was loaded.
Second Count
Statement of Offence
Possessing Ammunition Without a Licence (Section 31(1) of the Firearms Act, 2015).
Particulars of Offence
Luke Anthony Pepper on the 16th day of August 2018 at Para Hills West, possessed ammunition without holding a firearms licence authorising possession of that ammunition.
The relevant material facts are that a Detective Brevet Sergeant Sam Bailetti (DBS Bailetti) discovered a hidden bunker behind the mirror hanging on a wall of the garage of the defendant’s home during an investigation into a house fire at that home. Inside the bunker, he found a firearm and later, on 16 August 2018, the police became aware through an intelligence submission that the defendant had been seen in possession of a firearm. He had also been seen driving a silver Mitsubishi Outlander.
Using information obtained in the house fire investigation, the police went to an address at Salisbury Heights, which is a block of industrial units. Unit 7 of that block is the club rooms of the Descendants Motorcycle Club and the defendant is a senior member of that club.
On arrival, the police saw a silver Mitsubishi Outlander parked in the carpark; the vehicle was locked. It was not registered to the defendant but to a Steven Joseph Jaques who police then understood to be a close associate of the Descendants Motorcycle Club.
The police then made a search of unit 7 and in an area set aside as a bedroom, found papers in the name of the defendant. The police then seized the silver Mitsubishi Outlander and a search was conducted. A number of hidden compartments were found and in one, located behind the radio on the dashboard, and secured by a locking system which was electronically remotely operated, the police found a loaded handgun, a separate magazine of ammunition and cash totalling $45,100. There was also a number of utility bills and other paperwork in the name of the defendant and his partner. The defendant’s fingerprints were found on those documents and police also found a compartment key to a room at the Mawson Lakes Hotel which the defendant had rented in May 2017 without returning the key.
Also in the vehicle, the police located the defendant’s then current passport, two expired driver’s licences in the name of the defendant and a bankcard from Bendigo Bank belonging to him. His finger prints were found on the interior glass of the driver’s side window. A DNA swab was taken from the slide grooves, ejection port and hammer part of the firearm as well as other parts of the firearm. DNA was detected.[1] There is extremely strong support for the proposition that the defendant’s DNA was a contributor to that DNA profile. DNA was also detected on other parts of the firearm. There is extremely strong support that he is a contributor to the DNA profiles found on the other parts of the firearm. There is also strong support that Steven Joseph Jaques was not a contributor to those DNA profiles.
[1] Report of Rebecca Lee Windram 8 January 2019.
The police are also in possession of a number of pieces of evidence upon which they rely to prove that the defendant had the primary care and control of the Outlander motor vehicle. In November 2016, it had been parked in the driveway of an address associated with the Descendants Motorcycle Club which upon search on 19 March 2018 disclosed personal items belonging to the defendant. On 10 August 2017, the vehicle was involved in a car accident and at the time, it was driven by Crystal Fox, the partner of the defendant. On 31 August 2017, it was identified as parked in the driveway of a house occupied by the defendant’s brother who was overseas at the time. On 13 November 2017, the vehicle was apprehended by police and Crystal Fox was driving the vehicle. She is the mother of the defendant’s children. On 6 May 2018, the vehicle was used in a petrol drive off from the BP Service Station at Newton and at the time the defendant was driving the car. On 5 June 2018, the vehicle was pulled over by police at Mawson Lakes and the defendant, who was the driver, was issued with an expiation notice. On 25 June 2018, the defendant used the vehicle to purchase KFC at Marden and on 28 July 2018 it was seen at the Salisbury Heights address.
Section 9(1) of the Firearms Act 2015 is breached when a person has possession of a firearm without the appropriate licence. The defendant applicant is not the holder of a current firearms licence and so one substantive issue for proof is whether he was then in possession of the firearm.
On the question of possession there are aids to proof provided by the Firearms Act. Section 6(2)(d) of that Act provides as follows:
6—Possession of firearms etc
(2) For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a) …
(b) …
(c) …
(d) the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
It is apparent that a substantive question for proof is, for example, whether the defendant was in charge of the Outlander vehicle at the time of its seizure by police.
There is also an anterior question whether at the time of search, DBS Bailetti had reasonable cause to suspect that in this vehicle there was an object, possession of which constituted an offence.[2]
[2] Section 68(1)(a)(ii) Summary Offences Act 1953.
The trial of this action is now set for hearing in September 2021. It had earlier been set for trial on 26 October 2020 but it could not proceed because one principal prosecution witness, DBS Bailetti, was incapable of giving evidence because he was suffering a psychological condition. An email from his treating psychologist is before me. Those events are the genesis of this application.
By application for directions dated 8 April 2020, the defendant sought leave to issue a subpoena directed to the Commissioner of Police in the following terms:
Schedule of documents
The documents and things you must produce are as follows:
1. All medical, psychological and Return to Work SA documents, notes or records associated with Detective Brevet Sergeant Samuel Mark Bailetti’s inability to give evidence in the vacated trial of the Defendant.
2. Any document, note or record of any current investigation or other finding under the Police Complaints and Discipline Act 2016, relative to Detective Brevet Sergeant Samuel Mark Bailetti, including matters dealt with by way of:
a.Management Resolution per Part 3 of the Police Complaints and Discipline Act 2016;
b.Presenting a ‘Notice of Allegation’ to the Police Disciplinary Tribunal;
c.Any action described in s 26(1)(d)-(n) of the Police Complaints and Discipline Act 2016.
3. Any document, note or record of any finding under the Police (Complaints and Disciplinary Proceedings) Act 1985, relative to Detective Brevet Sergeant Samuel Mark Bailetti, including matters dealt with by way of action described in s 39 of the Police (Complaints and Disciplinary Proceedings) Act 1985.
4. Any document, note or record of any ‘minor misconduct’ per Division 3 of the Police Act 1998, prior to 4 September 2017, relative to Detective Brevet Sergeant Samuel Mark Bailetti.
The documents sought under the subpoena fall largely into two categories: the medical records associated with the inability of DBS Bailetti to give evidence on medical grounds and the documents connected with any current investigation or any finding under the Police Complaints and Discipline Act 2016. These include records of any findings made or any action concerning DBS Bailetti or any document connected with any minor misconduct.
In a deposition dated 2 March 2020, DBS Bailetti has deposed that he formed a reasonable cause to suspect for s 68(1)(a)(ii) of the Summary Offences Act that there was an object in the vehicle which he believed was associated with the defendant, the possession of which constituted an offence. As the police officer who formed the view for s 68(1)(a)(ii) of the Summary Offences Act, DBS Bailetti is one of the essential witnesses for the prosecution.
The defendant has entered a plea of not guilty to the charge. The prosecution proceeded through the criminal list of this court in the usual way and was set for trial on 26 October 2020. In the weeks before trial, the defence was informed that DBS Bailetti was not medically fit to give evidence. An email from a psychologist was given to the trial judge, his Honour Judge Durrant and based upon the information in that email the Judge remanded the matter for hearing in September 2021. The email was not seen by defence counsel and solicitors at the time but it has now been provided to them.
The email does not suggest that DBS Bailetti has in the past suffered some incapacity in the form of illness or mental disturbance that would call into doubt whether he could in 2018 be in a position to form a view that there was a reasonable cause to suspect under s 68(1)(a)(ii) Summary Offences Act. The email refers specifically to recent events and opines that DBS Bailetti would not be fit to return to work for between 3 and 6 months. It addresses prospective matters about the capacity of DBS Bailetti and not about any antecedent issues.
Mr Abbott QC for the defendant submitted that there are two substantive issues for trial: whether the suspicion of DBS Bailetti formed on 16 August 2018 was formed genuinely and on reasonable grounds; and whether it can be proved beyond reasonable doubt that the defendant was in charge of the vehicle for s 6 of the Firearms Act. He submitted that for both of these issues, DBS Bailetti is the key witness and so his mental state is an issue. He then postulated the question whether in the background of what is now known about the health of DBS Bailetti, he could reasonably and rationally form a reasonable cause to suspect.
Mr Abbott QC then addressed the medical condition that prevented DBS Bailetti from giving evidence before the court. He relied upon a Facebook post published by DBS Bailetti in 2016 in which he says that he suffered PTSD and he urged men to speak out about that medical condition. Mr Abbott QC submitted that by 2020 his PTSD was most likely a little worse based upon the report of the psychologist and there must be a serious question of whether he was in a position to form the view that there was a reasonable cause to suspect under s 68 of the Summary Offences Act.
I am unable to accept that submission. There is no evidence that as at 2016 (the date of the Facebook post), or any time before or after that date, until 16 October 2020, that DBS Bailetti was not a serving police officer. He participated in the police operation which led to the arrest of the defendant. There is no evidence to support the contention that his condition worsened after 2016 to the point that there (arguably) exists a doubt about his health at the time he formed his suspicion in 2018.
Mr Abbott QC then made submissions on the operation of s 10A of the Director of Public Prosecutions Act 1991 (DPP Act). That section provides as follows:
10A—Disclosure of information to Director
(1)A police officer in charge of the investigation of an indictable offence (the chief investigator) has a duty to disclose to the Director all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence.
(2)The chief investigator must, when so required by the Director, provide the Director with—
(a)     a list, certified by the chief investigator, of all documentary material so far collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence; and
(b)     copies of documentary material referred to in the list.
(3)     The duty of disclosure under subsection (1)—
(a)     extends to material that would be exempt from production in court because it is protected by privilege or for any other reason; and
(b)     continues until the termination date.
(4)The chief investigator must ensure that all material disclosed, or liable to disclosure, under subsection (1), is retained until the termination date.
(5)The chief investigator must, at the request of the Director, provide the Director with copies of specified documentary material collected or created in the course of the investigation that is not liable to disclosure under subsection (1).
(6)Copies of documentary material to be provided under this section may be provided in electronic form.
(7)A police officer must not, without good and sufficient cause, fail to carry out a duty under this section promptly and diligently.
(8)The police officer in charge of the investigation of an indictable offence will, for the purposes of this section, be the police officer appointed by the Commissioner for that purpose.
(9)     In this section—
termination date means the date when—
(a)     the Director decides that the person suspected of having committed the alleged offence not be prosecuted for the offence; or
(b)     the prosecution is terminated; or
(c)     the accused person is convicted or acquitted, and all rights of appeal have expired or been exhausted.
Mr Abbott QC submitted that the Office of the Director of Public Prosecutions is in breach of the requirements in this section because it has failed to provide to the defence the documents which it seeks on this application and which it is obliged to produce under the Act. The submission relies upon the decision of the Court of Criminal Appeal in R v Forrest.[3]
[3] [2016] SASCFC 76.

Forrest concerned the effect of an alleged failure by the police and so the DPP to make disclosure of information relevant to the credit and reliability of two witnesses called by the prosecution. These two witnesses were presented as credible witnesses but at the time the police were possessed of information that called into question their credibility. Both of these witnesses had connection with outlaw motorcycle gangs and a significant amount of prior offending. The identification of the defendant by one of these witnesses was essential to the prosecution case on the issue of the placement of the defendant at the scene of the crime. This evidence was denied by the defendant and so issues of credit became paramount.
The officer in charge of the investigation knew or ought to have known of the information that may deleteriously affect the credit of these two witnesses and so its gravity. The failure by the DPP to disclose this information was held to be a breach of the common law duty of disclosure upon the prosecution. It was irrelevant that the information was only in the possession of the police and that the solicitor in charge of the file in the Director’s Office did not have any of this information. There was a primary obligation to disclose upon the prosecution. This was described as knowledge, actually or constructively that must be disclosed.
The Court of Criminal Appeal received further material about each of those witnesses such as antecedent reports, records of periods spent incarcerated and terms of imprisonment. Both of them had a long-standing association with the illegal drugs trade and outlaw motorcycle gangs. This was material that could have been exploited by counsel for the defendant in cross-examination of those witnesses but he was not given that opportunity. Mr Abbott QC submitted that consistent with the approach of the Court of Criminal Appeal in Forrest, there had been a failure here of the DPP to comply with the requirements and operation of s 10A of the DPP Act.
I am unable to accept that submission. There is no evidence to suggest nor does any inference arise on the material before me, that there is some other material available that may assist the defence case. The submissions of the defendant appear to presume that there is undisclosed evidence that DBS Bailetti is suffering from a medical condition which, if it were disclosed, may assist the defence. No basis is established to justify the assertion of a breach of the requirements of s 10A of the DPP Act. I have earlier not accepted the defendant’s submission that there is any evidence before the Court to substantiate a contention or inference that DBS Bailetti was extremely unwell at the relevant time when he formed the opinion that he had reason to suspect for s 68(1)(a)(ii) of the Summary Offences Act. The evidence is that on an occasion in October 2020 he was so unwell he could not appear as a witness and this necessitated the adjournment. There is no evidence and there is no factual basis before the Court to infer or to imply that his state of mental and physical health got worse between 2016, the date when he disclosed on Facebook that he suffered PTSD, and October 2020.
Mr Abbott QC then submitted that the medical records of DBS Bailetti could reasonably be expected to assist the case of the defendant because there is a challenge to the claim of DBS Bailetti that he had a reasonable suspicion, and to his credibility and reliability. That is the reason why, separately, the defendant seeks the medical and disciplinary records. Mr Abbott QC submitted that the defendant is entitled to all of the evidence which could either be deployed or could lead to new lines of enquiry, all of which are directed to the challenge of the credibility and reliability of DBS Bailetti. He submits further that these medical records may disclose a medical condition which may have been affected by, for example, disciplinary proceedings that may have occurred. He submits that the defendant does not know whether there are disciplinary records but it is enough if there were disciplinary records.
As authority for that proposition, Mr Abbott QC relied upon the decision of King CJ in Carter v Hayes.[4] That case involved a charge of a minor indictable offence of indecent assault. Particulars were sought and some were supplied but the accused’s solicitors requested copies of all documents held by the police who only supplied a copy of the record of interview and refused access to other requested documents. These documents were then requested under a subpoena duces tecum. A magistrate at first instance quashed the subpoena. On appeal, Perry J agreed with the magistrate and dismissed the appeal.
[4] (1994) 61 SASR 451.
The decision of Perry J was reversed on appeal. The decision of the Full Court was written by King CJ and at p 452, his Honour set out the evidentiary material requested namely:
1.   Copy of the original statement of the complaint made by the complainant;
2.   Statement of the complaint made by the complainant;
3.   Statement of the police officer who first spoke to the complainant;
4.   Copies of any medical examination that the victim underwent as a result of the allegation;
5.   Statement of police officers who interviewed the defendant;
6.   Record of interview between the police and the defendant;
7.   Photographs of the victim complainant taken by medical personnel or by the police.
King CJ first referred the definition of ‘evidentiary material’ which may be sought pursuant to s 20 of the Magistrates Court Act 1991. That expression is defined to mean:
…any document… of evidentiary value in proceedings before the court and includes and document, object or substance that should, in the opinion of the court, be produced for the purpose of enabling the court to determine whether or not it has evidentiary value.
In Hunt v Wark,[5] King CJ construed words of similar effect under s 23 of the Justices Act 1921. There, his Honour held as follows:
It is not necessary to construe those words with undue strictness so as to refer only to documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross examination of a witness, such as statements by the witness with respect to matters at issue in the case.
[5] (1985) 40 SASR 489.
King CJ referred with approval to the decision of the Court of Criminal Appeal of New South Wales in R v Saleam[6] where it was held that the documents of evidentiary value must possess a legitimate forensic purpose. His Honour also applied the reasoning in the Court of Appeal of New South Wales in its decision in Madison v Goldrick:[7] a document may have evidentiary value not only because it is admissible in evidence, but also, even if it is not so admissible of itself, because it provides material of value for cross examination or discloses information which may be established in some other admissible form (R v Saleam at [22]).[8]
[6] (1989) 16 NSWLR 14.
[7] [1976] NSWLR 651 at 666.
[8] Carter v Hayes and Anor at 453.
King CJ also accepted that a party’s lack of knowledge of the existence or contents of the material sought is not of itself a valid objection to a subpoena. His Honour referred to the decision of the High Court in Alister v The Queen[9] as:
…an instance of a valid subpoena for the production of documents, the existence of which was not known to the accused with any specificity.
[9] (1984) 154 CLR 404.
His Honour held that his decision in Hunt v Wark[10] was distinguishable because the subpoena was issued but there was no material capable of raising any serious issue of impropriety on the part of the police and there was no reason to suppose that the documents sought, even if they existed, would have any bearing on any issue capable of being raised by the evidence. On that basis, the purpose was purely fishing.
[10] (1985) 40 SASR 489.
Mr Roberts, counsel for the Commissioner of Police, first addressed the argument put by Mr Abbott QC that there was a reasonable possibility that when DBS Bailetti formed the suspicion, he was suffering from some form of medical ailment because there is no evidence that he stopped suffering PTSD after 2016. Mr Roberts submitted that in paragraph 1 of the subpoena, the defendant seeks the provision of the medical records about the officer’s condition in 2020 which is not said to be limited to his ability to form a reasonable suspicion. Mr Roberts submitted and I accept that if a person suffers a medical condition or PTSD and he is unable to give evidence on medical grounds in October 2020, does not mean and it does not logically follow that any evidence to be given by that witness at a later time about events occurring in 2018, is unreliable or lacks creditworthiness. It is conjectural to suggest that because a person suffered PTSD in 2016 and was medically unfit to give evidence in 2020 about having formed a suspicion in 2018, that his reliability and creditworthiness as a witness in 2021 in relation to events that occurred in 2018 should or must consequently be called into question. DBS Bailetti was a serving police officer in 2018 notwithstanding that he had publicly announced that he suffered PTSD in 2016.
DBS Bailetti was medically incapable of giving evidence in October 2020 but there is nothing to suggest that this could be connected to a question of his reliability and creditworthiness to give evidence on the same topic, for example, in 2021. As King CJ described in Carter v Hayes at p 453, the purpose of such a request is to see whether anything might turn up in the documents which might provide a ground for the rejection of the evidence.
The question of what constitutes a legitimate forensic purpose was recently discussed in the judgment of Parker J in Australian Federal Police v XYZ[11] where his Honour held:
[11] (2015) 123 SASR 274 at [40], [41].
Principles
[40] The principles for determining whether a party is entitled to access documents by way of a subpoena were summarised by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and De Pietro[12] as follows:[13]
[12] [2011] VSC 3 at [28].
[13] I include in this passage, as footnotes, the authorities cited by J Forrest J.
(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;[14]
(b)     the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;[15]
(c)     the applicant for the witness summons must also satisfy the court that it is “on the cards”,[16] or that there is a “reasonable possibility”,[17] that the documents sought under the subpoena “will materially assist the defence”.[18]
(d)     a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;[19]
(e)     the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[20] 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.[21]
(f)     a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(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.[22]
(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.[23]
[41] I respectfully adopt this summary by J Forrest J as an accurate statement of the legal principles. I will consider the objections made by the AFP about delay, relevance and fishing in light of these principles.
[14] R v Saleam (1989) 16 NSWLR 14 at 18; R v Mokbel (Ruling No 1) [2005] VSC 410 at [45]; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]; Re Don [2006] NSWSC 1125 at [26].
[15] Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 681.
[16] Alister v The Queen (1984) 154 CLR 404 at 414.
[17] DPP v Selway (Ruling No 2) (2007) 16 VR 508 at [10]; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300 at [96].
[18] Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [5], [62] and [64]; R v Mokbel (Ruling No 1) [2005] VSC 410 at [45]; R v Saleam [1999] NSWCCA 86 at [11]; Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam (1989) 16 NSWLR 14 at 18.
[19] Alister v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14 at 17; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Re Don [2006] NSWSC 1125 at [26].
[20] Attorney-General (New South Wales) v Chidgey (2008) 182 A Crim R 536 at [59].
[21] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181.
[22] Sankey v Whitlam (1978) 142 CLR 1 at 42 and 62; Alister v The Queen (1984) 154 CLR 404 at 414 and 454–456; R v Saleam (1989) 16 NSWLR 14 at 17; R v Mokbel (Ruling No 1) (2005) VSC 410 at [40].
[23] R v Saleam (1989) 16 NSWLR 14 at 18. See also R v Sergi [1998] 1 Qd R 536; R v Saleam [1999] NSWCCA 86 at [11].
The process where leave is sought to issue a subpoena for documents in order to find out whether they may be of relevance or of assistance in a party’s defence, is usually described as a fishing expedition. This process is usually understood as someone trying to find out whether something exists or speculating as to its possible existence. On the issue of legitimate forensic purpose, in Attorney General for NSW v Stuart,[24] Hunt CJ said:
The concept of legitimate forensic purpose… arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least ‘on the cards’ as such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (1989) 16 NSWLR 14 at 17-18. He is not entitled to conduct a phishing expedition.
[24] (1994) 34 NSWLR 667 at 681.
The expression “on the cards”, is to be found in the judgment of Gibbs CJ in Alister v R.[25] In Ragg v Magistrates Court of Victoria,[26] at [92] et seq, Bell J considered the expression “on the cards” as follows:
[25] (1984) 154 CLR 404 at 414.
[26] (2008) 18 VR 300.
[92] The expression “on the cards” was used by Gibbs CJ in Alister v R[27] as a metaphor to explain the applicable test. With respect, as a way of explaining that test, perhaps it has outlived its usefulness.[28] As Cummins J showed convincingly in DPP v Selway,[29] it can certainly mean different things in different contexts. But there is no doubt in my mind that Gibbs CJ did not use the metaphor to explain that the test was one of probability – that the accused had to show it was probable the documents would be useful to the defence. His Honour was contemplating something less, as the example he immediately gave (see above) would indicate. How should the courts state with greater certainty the test given to us by Gibbs CJ?
[27] (1984) 154 CLR 404.
[28] See Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR 310; DPP v Selway [2007] VSC 244.
[29] [2007] VSC 244, [4]-[7].
[93] To answer that question, I think it is necessary to balance two competing considerations: first, ensuring the fair trial of the accused by giving the defence access to material documents; and second, protecting the prosecution, and prosecutorial agencies, from unjustified summonses to produce. We have already seen a similar balance is struck in defining the scope of the prosecutor’s duty to disclose. That duty extends, for example, to material which tends to assist the defence case, but not to all material held by the prosecution. We have also seen the same balance is struck in the human rights context. Articles 14(1) and (3)(b) of the ICCPR have been held to require the accused to have access to exculpatory material, which includes evidence that could assist the defence but, again, not everything held by the prosecution. In determining an objection to a summons to produce in the criminal law context, the court is really determining, after balancing those competing considerations, what a fair trial between the prosecution and the accused requires the defence to be given.
[94] The issue of a more certain test has been considered in three recent cases from which a positive trend emerges that, by this judgment, I would continue. In none of them are the facts material, so I can go straight to the statements of principle, between which I see no significant difference. The first was Roads and Traffic Authority of New South Wales v Conolly.[30] Adams J said this:
However, the obligation on the party calling on a subpoena to produce is ‘to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought.’[31] Where that is done, I do not think that it is necessary that the party needs to demonstrate more than that there is a reasonable chance that the documents in question will serve the purpose so specified.[32]
The second is Felice v County Court of Victoria and Anor.[33] Osborn J put the test this way:
It is sufficient in a criminal proceeding if the material before the court gives rise to a possibility which is not merely hypothetical, but sufficiently reasonable having regard to the circumstances as a whole, to justify production of documents because it is ‘on the cards’ they will materially assist the defence.[34]
The third is DPP v Selway,[35] where Cummins J said most emphatically of all:
On the basis of the above authorities, I consider the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence. Probability is too high a standard. Mere possibility is too law. The adverb ‘reasonably’ gives proper scope to the judge to determine the issue responsibly and objectively. Such a standard also is consonant with the principles of open justice. [36]
[95] I would adopt this approach, not only because it is not clearly wrong,[37] but because I think it is correct. More specifically, a “reasonably possibility” test expresses in more certain language what Gibbs CJ probably had in mind when he used the “on the cards” metaphor in Alister v R,[38] gives proper effect to the underlying fundamental duty of the court to ensure a fair trial and is consistent with international human rights and principles that Australia recognises. With respect, I would not follow the judgment of Balmford J in Fitzgerald v Magistrates’ Court[39] that “on the cards” means “within the range of probability”[40] because it is clearly incorrect.
[96] 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.
[97] The “reasonably possibility” test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider “the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue”[41] and, more generally, “the circumstances as a whole”.[42] In doing so, it is necessary to give a “broad interpretation” to the issues in the case[43] or, to put it another way, the “parties’ respective cases should not be restrictively analysed.”[44] It is also important to pay due regard to the fact that “[d]efence lawyers are in a better position than a judge to make an appraisal of the value of information contained.”[45] Lastly, as Pincus JA said in R v Spizzirri: “courts should be careful not to deprive the defence of documents which could be of assistance to the accused.”[46]
[30] (2003) 57 NSWLR 310.
[31] Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498, 504 per Barr A-J (as he then was).
[32] Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR 310, 315.
[33] [2006] VSC 12.
[34] Ibid [52].
[35] [2007] VSC 244.
[36] Ibid [10] (footnotes omitted).
[37] Tomasevic v Travaglini [2007] VSC 337, [21]-[24].
[38] (1984) 154 CLR 404, 414.
[39] [2001] VSC 348.
[40] Ibid [31].
[41] ACC v Brereton [2007] VSC 297, [16] per Smith J.
[42] Felice v County Court of Victoria & Anor [2006] VSC 12, [52].
[43] R v Brown [1998] AC 367, 377.
[44] R v H [2004] 2 AC 134, 155.
[45] R v Mokbel (Ruling No 1) [2005] VSC 410 [71].
[46] [2001] 2 Qd R 686, 690.

I refer in particular to Bell J’s comments at [97] that the reasonable possibility test does not apply in all circumstances in a fixed manner as if relevant considerations all have the same value. It is therefore necessary to give a weighting to the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of the issue. His Honour dealt with that topic at [98]-[99] as follows:
[98] Turning now to the present case, it presents as a classic example of one in which the prosecution side possesses a significantly superior knowledge of the documents revealed by the extensive police investigation, which was carried out with modern search and surveillance techniques, much of it covertly. Despite the material provided in the hand-up brief, which was extensive, a substantial volume of material still has not been provided, on the judgment of the police. I think it is necessary in the interests of a fair trial for the defence to have access to the material sought, even if it is unused material from the point of view of the prosecution. It is reasonably possible that the material may be of positive use to the defence in various ways. Without that access, it can hardly be said that there is equality of arms between the prosecution and the defence.
[99] The documents specified in the summonses are extensive and invite critical attention. But this is a major prosecution and the magistrate gave the documents that attention. The documents are described under categories that seem to have an intelligent and meaningful connection to the issues of possible significance in the prosecution. The two summonses are the only ones that have so far been issued in the case. I infer that the defence, by the summonses, is attempting to obtain, at the same time and prior to the commencement of the committal, all the additional documents that may reasonably be needed, which is a process that should be encouraged.
His Honour was able to identify that the documents described have an intelligible and meaningful connection to the issues of possible significance in the prosecution. The prosecution side possessed a significantly superior knowledge of the documents revealed by the police investigation carried out with modern search and surveillance techniques and even if the material requested is unused material from the point of the prosecution, it is reasonably possible that the material might be of positive use to the defence in various ways.
The case at bar is different. I am not satisfied that the documents sought will assist the defence case. At its highest, the applicant defendant put his application on the basis that it might assist his case and that underscores the weakness of the approach of the applicant defendant. That is because he indirectly discloses that he is searching about for documents to see whether they might be relevant or they might assist in his defence. The defendant has failed to satisfy me that there is a reasonable possibility that the sought-for information would materially assist the defence case.
At paragraph 12 of his written submissions, the defendant said:
Bailetti’s credit is therefore a relevant issue as well as his reliability. In relation to reliability, we seek the medical documents and in relation to credibility we seek the disciplinary documents referred to in paragraphs 2, 3 and 4 of the subpoena.
In support of that submission, the defendant relied upon the decision of Mullighan J in the Full Court decision of R v Polley.[47] Paragraph 17 of the submissions of the applicant then read as follows:
The defendant submits special reasons are established by the Director’s application for an adjournment on the basis of DBS Bailetti’s psychological unfitness. This reason is special to this particular case and out of the ordinary. The applicant wishes to explore the reasons for that unfitness, including, if it is related to police disciplinary proceedings.
[47] (1997) 68 SASR 227 at 243-246.
The decision in Polley was delivered prior to the enactment of the Police Complaints and Discipline Act 2016 which is the statutory scheme enacted by Parliament for the resolution of complaints about members of the South Australian Police Force. A number of provisions within the Act deal with prevention of the publication of information identifying persons who are the subject of the complaint or material obtained within the course of the complaint. The Act requires that there be a protection from disclosure of any confidential information discerned within the course of any investigation. If there is to be the divulgence of such information, it may only be in particular circumstances and with specific controls. The reasons include for the protection of information divulged by complainants and others to an investigating authority and the sequelae of the divulgence of such information.
Section 44 of the Police Complaints and Discipline Act provides as follows:
44 Limitation on requirement to divulge information
Despite any other Act or law, a person who is, or who has been, engaged in the administration or enforcement of this Act or the repealed Act cannot be required to divulge information disclosed or obtained in the course of an investigation under this Act or the repealed Act except where such a requirement is made –
(a) in proceedings before a court or the Tribunal in respect of
(i) an offence; or
(ii) a breach of discipline, relating to a matter the subject of the investigation; or
(b) in proceedings under the Royal Commissions Act 1917; or
(c) by the ICAC or the OPI; or
(d) by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
The opening phrase of the section: “…despite any other Act or law…” makes apparent Parliament’s intention that the requirement for confidentiality under this section is to have application and primacy over any other Act or law.
The Act has retrospective operation; it applies to any person who has been engaged in the administration or enforcement of the Act or the repealed Act, the Police (Complaints and Disciplinary Procedures) Act 1985. Under this section, any person engaged in the administration or enforcement of the Act or the repealed Act, cannot be required to divulge information disclosed or obtained in the course of the investigation under the Act, or the repealed Act, except where such a requirement arises under subparagraphs (a), (b), (c) or (d). Under s 44(d), a Court can compel the disclosure of information but it must be satisfied first that there are special reasons requiring the making of such an order and second, that the interests of justice cannot be adequately served except by the making of such an order.
Section 44(d) was considered by the Full Court of the Supreme Court of South Australia in its decision in White and Others v The State of South Australia and Others.[48] That case concerned a confrontation at the Beverly Uranium Mine near Arkaroola between protestors and police officers and allegations made by protestors that police officers engaged in a series of assaults and other tortious conduct. The police officers claimed immunity from production of certain documents that were sought to be disclosed, that claim was upheld by a Master and on appeal, a Judge of the court overturned the decision of the Master and ordered production. On appeal to the Full Court, the decision of the Single Judge was overruled.
[48] (2007) 96 SASR 581.
At [43] and following, Doyle CJ considered the decision of the Judge below at first instance (at [63] and [64]). In summary, the learned Judge at first instance considered that a level playing field required the production to both parties to the dispute of the relevant documents and materials contained during the course of the investigations by the police department into the complaints against the individual police officers. If it were otherwise, an unfair advantage would be conferred upon one party. At [44], Doyle CJ respectfully disagreed. His Honour held as follows at [45]-[52]:
[45] The Judge said that he was exercising a discretion. In my respectful opinion the Court does not exercise a discretion when it makes an order under s 48(7)(c). It may make the order only if the statutory criteria are satisfied.
[46] I have already referred to the fact that the CDP Act has a number of provisions that emphasise the confidential aspect of investigations undertaken by the PCA and by the internal investigation branch under the CDP Act. There are no doubt a number of reasons for this. First, there may be a need to protect complainants. Confidentiality may also be required to encourage complainants to come forward, in the knowledge that their complaint will be treated as confidential. In some cases there will be a need for the fact of investigation, and its scope, to be kept confidential. If it is not, the persons under investigation might have the opportunity to destroy or to conceal relevant material, or to put their heads together. An investigation under the CDP Act will usually involve the scrutiny of the internal operations of the police force, and there may be aspects of this that should be treated as confidential. There may also be a need to keep confidential the investigation methods used by the internal investigation branch. It is also possible that disclosure of information acquired in the course of an investigation might prejudice the investigation of crimes by the police force: see s 48(3) of the CDP Act (above).
[47] Bearing all those factors in mind, it is not surprising that there should be secrecy obligations imposed by the CDP Act. Nor is it surprising that the standard set by s 48(7)(c) is as stringent as it is. The Court must be satisfied that there are “special reasons requiring the making” of an order, and in addition “that the interests of justice cannot adequately be served except by the making of” an order.
[48] The expression “special reasons” must always be interpreted in light of its context: Goldsmith v Newman (1992) 59 SASR 404 at 409.
[49] In the context of the CDP Act, and having regard to the sensitive nature of the functions of the PCA and of the internal investigation branch, “special reasons” must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight. And, as I have already said, they must be reasons that call for or require the making of an order.
[50] It goes without saying that circumstances that are routine, and consequences that are a normal and inevitable result of the secrecy provisions, are unlikely to give rise to “special reasons”. The submission that the PCA and the Commissioner should be accountable to the Courts (presumably by requiring disclosure of information) should not be accepted. It is clear from the legislation that that cannot be the starting point. The legislation provides otherwise. Similarly, the submission that disclosure of the material will facilitate the efficient conduct of the proceedings cannot be accepted as a relevant matter. There is nothing special or out of the ordinary in the fact that the inability to obtain the production of documents such as the contested documents will or might prejudice the efficient conduct of the litigation. Under this head the Court must also consider the possible impact of the making of an order on those involved in the matter that has been investigated, and on those who are the subject of the relevant information. It must also involve a consideration of the impact or possible impact of an order on the ability of the PCA and of the internal investigation branch to discharge their functions under the CDP Act.
[51] I will return to the issue of special reasons shortly.
[52] The Court must also consider what is required by the interests of justice. The power under s 48(7)(c) may fall to be exercised in a wide range of circumstances. It is not limited to production in connection with civil litigation or criminal proceedings. This further provision requires consideration of the justice of the situation, which (at least in the context of civil or criminal proceedings) invites attention to the circumstances of the parties, and to the ability of the court to render justice. The Court must be satisfied that only by the making of an order can the interests of justice adequately be served, and that necessarily implies that unless the interests of justice require the making of an order, it is not to be made.
Doyle CJ held that a consideration of the merits of such an application is not the exercise of a discretion and a Judge may make an order for disclosure only if the statutory criteria are satisfied. Upon a survey of the contents of the Act, it is apparent that confidentiality is required for a number of reasons and in a number of circumstances including to encourage complainants to come forward such that they may be confident that any complaint would be kept confidential; and there is a need to keep an investigation and its scope confidential so as to avoid, for example, the opportunity to destroy or conceal relevant materials or to concoct a false narrative. Any scrutiny of the internal operations of the Police should, in particular circumstances, be kept confidential as should the investigative methods used by the Internal Investigation Branch.
At [47] Doyle CJ held that if all of those matters are taken into account, it is not surprising that there should be secrecy obligations imposed under the Act or that the standard set by the s 48(7)(c) is as stringent as it is. Section 48(7) of the Act provides as follows:
(7)Despite any other Act or law, a person who is or has been the Ombudsman or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made—
(a)     in proceedings before a court or the Tribunal in respect of—
(i)    an offence; or
(ii)     a breach of discipline,
relating to a matter the subject of the investigation; or
(b)     in proceedings under the Royal Commissions Act 1917; or
(c)     as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
Doyle CJ then turned to the question of what constitutes special reasons. That expression must be interpreted in light of context and the expression must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case and that carry particular or significant weight. As well, those special reasons must be reasons that call for or require the making of the order.[49] It would not usually be the case that routine circumstances with consequences that are normal or inevitable are special. The starting point is not that the Police Complaint’s Authority (PCA) or the Commissioner are to be accountable to the Court. Doyle CJ did not accept that disclosure of such material would facilitate the efficient conduct of a proceeding merely because documents could not otherwise be obtained, is special or out of the ordinary. The Court is required to consider the possible impact of the making of the order on those involved in the matter being investigated and on those who are the subject of the relevant information. The Court must also consider the impact or possible impact of an order on the ability of the Police Complaint’s Authority and of the Internal Investigation Branch to discharge their functions under the Act. Debelle J agreed with the decision of the Chief Justice and his Honour discussed the operation of s 44 of the Police (Complaints and Discipline) Act at paragraphs [92]-[93] of the judgment.
[49] At [49].
In his judgment, Debelle J emphasised that for special reasons to exist there first must be a factor present which is over and above the interest of justice requiring disclosure and there must be some special features of the circumstances which provides a reason not usually present for requiring disclosure.
The intention of the legislation is to prevent a repeat of the circumstances in R v Polley and so to avoid trawling through the police records of police officers to ascertain whether something could be identified that may give some assistance or may reveal something which would lead to some other enquiries. The judgments of the majority judges in the decision in White v SA make plain that special reasons and satisfaction that the interest of justice could not be adequately served except by the making of such an order means that there would be a prohibition of the delivery up of such documents.
I am not satisfied that here the defendant has pointed to any special reason about why the information protected by s 44 of the Act should be provided to him. Nor, am I satisfied that the interest of justice would not be adequately served except by the making of such an order. In reference to paragraphs 12 and 17 of the submissions of the defendant applicant, I am not satisfied that there is any proper connection between the inability of DBS Bailetti to give evidence in October 2020 for medical reasons, and for example, any disciplinary matters connected with the conduct of DBS Bailetti. There is no legitimate forensic purpose to obtain the documents which is disclosed on the face of the supporting material or in argument. I am satisfied that it is not reasonably possible that the documents sought would assist because I am not satisfied that any basis has been made out before me that those documents are relevant.
So also, I am unable to accept the submission summarised at paragraph 17 of the defendant’s written submissions that an application for an adjournment on the basis of DBS Bailetti’s psychological fitness in some way takes the case out of the ordinary. The submission that the defendant wishes to explore the reasons for that unfitness, including if it is related to Police disciplinary proceeding again underscores the inability of the defendant to raise any legitimate forensic purpose, or to provide any proper foundation for an assertion of any connection between the unfitness to give evidence in October 2020 and any police disciplinary proceedings.
The applicant defendant fails in his application under s 44 for the same reasons. No special reasons are disclosed and the defendant applicant has not satisfied me that the interest of justice cannot be adequately served except for the making of such an order.
I refuse the application.