R v W R (NO 2)
[2009] ACTSC 110 (2 September 2009)
EVIDENCE – subpoena to produce documents – directing documents to be produced to the solicitor – inappropriate – grounds for setting aside – other orders made under Court Procedures Rules 2006 (ACT), r 6604.
EVIDENCE – subpoena to produce documents – protection of counselling records for victims of sexual assault – whether subpoena should be issued – subpoena should not be issued without leave when legitimate forensic purpose can be determined – Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 59, 60, 61.
EVIDENCE – subpoena to produce documents – too broad – oppressive – whether should be set aside – schedule to subpoena reformulated under Court Procedures Rules 2006 ACT), r 6604.
Court Procedures Act 2004 (ACT)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.5, ss 40Q, 59, 60, 61
Criminal Procedure Act 1986 (NSW), Chpt 6, Pt 5, Div 2
Evidence Act 1906 (WA), ss 19A-19M
Evidence Act 1939 (NT), Pt VIA
Court Procedures Rules 2006 (ACT), Pt 6.2, Div 2.8.7, rr 4706, 6604, 6605
Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Wood P M, “Challenging Subpoenae Ducas Tecum: Is There a Third Party View” (1984) 10 Syd L Rev 379
Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner for Railways v Small (1938) 35 SR (NSW) 564
R v Young (1999) 46 NSWLR 681
Re McInnes [2009] ACTSC 29
National Employer’s Mutual General Association Ltd v Waind and Hall [1978] 1 NSWLR 372
Hardie v Cooke [1990] 2 Qd R 351
Alliance Petroleum Australia (NL) and Ors v Australian Gas Light Co (1982) 44 ALR 124
Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
No. SCC 353 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 2 September 2009
IN THE SUPREME COURT OF THE )
) No. SCC 353 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
W R
ORDER
Judge: Refshauge J
Date: 23 July 2009
Place: Canberra
THE COURT ORDERS THAT:
Pursuant to r 6604, the schedules in the subpoenas addressed to:
a)[a named counsellor];
b)the Deputy Principal, [the complainant’s] school;
c)the Proper Officer, Canberra Hospital;
d)the Proper Officer, Department of Disability, Housing and Community Services;
e)[the complainant’s father]; and
f)Ms Kristy Ann Scott of the Australian Federal Police;
be set aside and replaced with the respective schedules set out in the document initialled by Refshauge J and dated by him 23 July 2009 and placed on the court file.
The addressees be permitted to deliver the documents referred to in the replacement schedules to the Registrar of the ACT Supreme Court by 9.30 a.m. on Monday 27 July 2009 in compliance with the subpoena or to attend in person at 10.00 a.m. on 27 July 2009.
The addressees to each of the subpoenas referred to in order 1 above be contacted today as follows:
by facsimile: the Proper Officer…
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- AGLC
- R v WR (No 2) [2009] ACTSC 110
- Case
- [2009] ACTSC 110
- Decision Date
CaseChat Overview and Summary
The court found that the original subpoena was indeed too broad and oppressive, warranting its setting aside. It noted that a subpoena to produce documents should not be issued without leave when a legitimate forensic purpose can be determined. The court reformulated the subpoena's schedule to narrow down the list of documents required, and provided specific instructions on how and when the documents should be produced. The court also emphasised the need to protect counselling records for victims of sexual assault, as provided under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court further ordered the defendant's lawyer to notify the affected parties of the changes and to provide them with a copy of relevant sections of the Act.
The final orders included setting aside the original subpoenas and replacing them with narrower schedules, extending the time for document production, and listing the case for further proceedings. The defendant's lawyer was also required to notify the affected parties and the Director of Public Prosecutions of the court's orders, and to file a Notice of Solicitor Acting (Supreme Court Criminal Proceedings) Form 4.4. The court excused the defendant's solicitor's failure to contact the complainant's father, given the circumstances. Overall, the case highlighted the importance of ensuring that subpoenas are appropriately tailored to the needs of the case, while also respecting the privacy and rights of individuals involved.
Orders
Orders of the court
1. Pursuant to r 6604, the schedules in the subpoenas addressed to:
a) [a named counsellor];
b) the Deputy Principal, [the complainant's] school;
c) the Proper Officer, Canberra Hospital;
d) the Proper Officer, Department of Disability, Housing and Community Services;
e) [the complainant's father]; and
f) Ms Kristy Ann Scott of the Australian Federal Police;
be set aside and replaced with the respective schedules set out in the document initialled by Refshauge J and dated by him 23 July 2009 and placed on the court file.
2. The addressees be permitted to deliver the documents referred to in the replacement schedules to the Registrar of the ACT Supreme Court by 9.30 a.m. on Monday 27 July 2009 in compliance with the subpoena or to attend in person at 10.00 a.m. on 27 July 2009.
3. The addressees to each of the subpoenas referred to in order 1 above be contacted today as follows:
by facsimile: the Proper Officer Department of Disability, Housing and Community Services
the Proper Officer Canberra Hospital
by e-mail: [the counsellor]
the Deputy Principal [the complainant's] school
Ms Kristy Ann Scott
by letter sent by ordinary post: [the complainant's father]
4. In the contact referred to in order 3 above, the accused's lawyer is to advise:
1. That the schedule of documents required by the subpoena to be produced by each addressee has been set aside by order of the ACT Supreme Court and replaced by that order with a narrower list of documents to be produced.
2. That the schedule of documents the relevant addressees are required to produce is attached.
3. That the time within which the addressee may deliver the documents to the court without the need to attend personally is extended to 9.30 a.m. on Monday 27 July 2009.
4. That if the addressee wishes to object to the production of any document, the addressee must attend personally at the Supreme Court on Monday 27 July 2009 at 10.00 a.m.
5. That if the addressee wishes to produce the documents in person that are required to be produced, the addressee may attend personally at the Supreme Court on Monday 27 July 2009 at 10.00 a.m.
6. Otherwise, the addressee remains bound to comply with the subpoena as amended by the attached schedule.
5. The accused's lawyer is to attach to each communication referred to in orders 3 and 4 above the relevant schedule referred to in order 1 referable to the respective addressee and, where required, a copy of ss 54 and 55 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
6. The proceedings be listed at 10.00 a.m. on Monday 27 July 2009 for the purpose of the accused calling on the subpoenas.
7. The accused's lawyer forward to the Director of Public Prosecutions a copy of each communication referred to in orders 3 and 4 above by 10.00 a.m. on Friday 24 July 2009.
8. In the circumstances, the accused's solicitor's failure to contact [the complainant's father] yesterday be excused.
9. The accused's lawyer is to file and serve a Notice of Solicitor Acting (Supreme Court Criminal Proceedings) ? Form 4.4.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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