Spigelman CJ at 1; Studdert J at 2; Simpson J at 3
COUNSEL:
Crown : W G Dawe QC (Respondent) Applicant in Person
SOLICITORS:
Crown : R Gray
CATCHWORDS:
Application for production of documents from DPP and Commissioner of Police; Legitimate forensic purpose (R v Saleam (1989) 15 NSWLR 14) applied ; Exclusion of prosecution evidence on public policy grounds (R v Ridgeway (1995) 184 CLR 19) ; "On the cards" test (Alister v R (1984) 154 CLR 404 not satisfied.
SIMPSON J: 3 In these interlocutory proceedings the applicant seeks orders for the production of documents by the Director of Public Prosecutions and the Commissioner of Police. 4 In 1994 the applicant was charged in the District Court with conspiring, in 1990, with John Rex Anderson maliciously to damage by fire a motor vehicle the property of Peter Coleman. He applied for a permanent stay of proceedings. As one of the bases on which he sought the stay he alleged that he had been induced to commit the offence by his former wife, who in turn was acting at the instigation of a police officer. On 28 September 1994 Judge Viney refused the application. He observed that there was no evidence that the applicant was induced by his wife to commit the offence, nor that any inducement to that end had emanated from the police and that so much had been conceded by counsel who then appeared for the applicant. 5 The trial proceeded as a trial by judge sitting alone pursuant to s 32 of the Criminal Procedure Act1986. The applicant was convicted. On 6 October 1994 Judge Viney sentenced him to a total term of imprisonment for two years made up of a minimum term of six months and an additional term of eighteen months. 6 To some extent this court was hampered by a scarcity of relevant material. For example, Judge Viney’s reasons for convicting the applicant are not available. Had…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Saleam [1999] NSWCCA 86
Case
[1999] NSWCCA 86
Decision Date
CaseChat Overview and Summary
In the case of R v Saleam, the defendant, Saleam, applied for the production of certain documents held by the Director of Public Prosecutions and the Commissioner of Police. The application was made under a specific legislative provision that allows for the disclosure of documents that are necessary for the defendant's case. The nature of the dispute involved whether these documents could be disclosed to the defendant for his legal preparation and potential use in his defence. The case was heard in the Supreme Court of New South Wales.
The primary legal issue before the court was whether the documents sought by the defendant met the criteria for disclosure under the relevant legislation. The court had to consider whether the disclosure of these documents served a legitimate forensic purpose and whether there were any public policy considerations that might exclude their disclosure. The court also had to determine whether the "on the cards" test, which assesses the likelihood of the documents being relevant to the case, was satisfied. This test is derived from the case of Alister v R (1984) 154 CLR 404.
The court applied the principles established in R v Saleam (1989) 15 NSWLR 14, which set out the criteria for the disclosure of documents for a legitimate forensic purpose. It considered whether the documents were necessary for the defendant’s case and whether their disclosure would serve a legitimate purpose in the preparation of the defence. The court also examined the public policy considerations, drawing on the decision in R v Ridgeway (1995) 184 CLR 19, which discusses the exclusion of evidence on public policy grounds. After thorough analysis, the court found that the "on the cards" test was not satisfied, meaning the documents were not likely to be relevant to the case. Consequently, the court ruled against the disclosure of the documents.