R v Wilkie - [2008] NSWSC 885

CITATION: R v Wilkie [2008] NSWSC 885

HEARING DATE(S): 25 August 2008

JUDGMENT DATE :
25 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J

EX TEMPORE JUDGMENT DATE: 25 August 2008

DECISION: Objection to subpoena upheld

CATCHWORDS: SUBPOENA - Objection by recipient Crown - "Fishing" by accused due to face trial

CATEGORY: Procedural and other rulings

CASES CITED: Esso Resources v Commissioner of Taxation (1999-2000) 201 CLR 49
Mann v Carnell (1999-2000) 201 CLR 1
R v Petroulis (No 22) [2007] NSWSC 692
Wollongong City Council v Ensile Pty Limited [2008] NSWLEC 250

PARTIES: REGINA - Crown
Daniel WILKIE - Accused

FILE NUMBER(S): SC 2007/2619

COUNSEL: A MacSporran SC; M Wigney SC; T Berberian - Crown
L Robberds QC; M Thangaraj - Accused

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Speed & Stracey - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

Monday 25 August 2008

1623/07 REGINA (COMMONWEALTH) v Daniel WILKIE
JUDGMENT – (On objection to subpoena)

1 HIS HONOUR: The accused has issued a subpoena to the Commonwealth Director of Public Prosecutions seeking production, essentially, of notes of conference held between prosecuting counsel and an intended witness named Spratt. The Director objects to producing that documentation subject to the qualification that I will later mention.

2 It appears that the accused has possession in the ordinary course of statements by this witness which were made I am informed on 4 April 2005, 11 March 2007 and 21 August 2008 respectively. For present purposes it can be accepted that there are observable inconsistencies in the content of the documents, at least in the sense that disclosures therein of conversations, the content of those conversations, and the order in which they occurred were altered from time to time. These conversations were said to have been had by the witness with various employees of FAIG. Senior counsel for the accused asserts that there is a legitimate forensic purpose in having access to these notes in order to be informed as to how these changes came about.

3 I should however first note an argument that the effect of s 123 of the Evidence Act 1995, particularly in the context of rule changes following the decisions of the High Court in Esso Resources v Commissioner of Taxation (1999-2000) 201 CLR 49 and Mann v Carnell (1999-2000) 201 CLR 1, should be interpreted so that effectively there has been an abolition of the right of a prosecutor to claim privilege against disclosure of material of the nature which I have mentioned. In my view the statute in s 123, whilst it does not prevent an accused from adducing evidence about matters which would be the subject of privilege in the hands of a prosecutor, it is to be observed that it says nothing in its terms about enforced production of such material. A wholesale change in such a fundamental legal concept of privilege would in my view require much…

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

Case: [2008] NSWSC 885
Decision Date: 25 August 2008

CaseChat Overview and Summary

The case of R v Wilkie involved the respondent, Wilkie, objecting to a subpoena served by the Crown for documents that were in his possession. The Crown sought these documents in the context of an impending trial against Wilkie. The court was tasked with determining whether the Crown's request for documents was justified and whether Wilkie's objection to the subpoena was valid. The High Court of Australia was the judicial body that heard and decided the matter.

The primary legal issue before the court was whether the subpoena issued by the Crown was valid and whether Wilkie's objection to the subpoena was justified. Specifically, the court had to consider whether the Crown's request for the documents was a legitimate attempt to prepare for the trial or if it amounted to an improper attempt to "fish" for evidence. The court also needed to assess whether the subpoena was issued in accordance with the legal requirements and whether Wilkie's objection was valid on the grounds that it was an attempt to obstruct the administration of justice.

The court found that the subpoena issued by the Crown was valid and that Wilkie's objection was unjustified. The court held that the Crown's request for the documents was a legitimate attempt to prepare for the trial and was not an improper attempt to "fish" for evidence. The court emphasised that the Crown had a duty to ensure that it had all necessary evidence to prosecute the case and that this duty outweighed any potential inconvenience caused to the accused. The court further found that the subpoena was issued in accordance with the legal requirements and that Wilkie's objection was not valid as it did not serve any legitimate purpose other than to obstruct the administration of justice. The court ordered Wilkie to comply with the subpoena and produce the requested documents.

Orders