R v Young

[2020] ACTSC 356

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Young
Citation:	[2020] ACTSC 356
Hearing Dates:	11 December 2020
Decision Date:	11 December 2020
Before:	McWilliam AsJ
Decision:	See [11]
Catchwords:	CRIMINAL LAW – SUPOENAS – Whether legitimate forensic
purpose
Cases Cited:	Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 Gloucester Shire Council v Fitch Ratings [2016] FCA 587 Instyle Estate Agents Gungahlin Pty Ltd v Hambrook [2020]
ACTSC 293
Parties:	The Queen (Applicant)
Megan Young (Respondent) ACT Office of the Director of Public Prosecutions (Interested Party)
Representation:	Counsel
B Hamack (Applicant)
K Ginges (Respondent) P Dixon (Interested Party)
Solicitors
ACT Government Solicitor (Applicant) McKenna Taylor (Respondent)
ACT Office of the Director of Public Prosecutions (Interested Party)
File Number:	SCC 228 of 2020
McWilliam AsJ:

2. The subpoena was issued to the Proper Officer, Information Access Team, Prosecution Support at the AFP. The schedule to the subpoena contains the following:

1.       By application in a proceeding filed 24 November 2020, the applicant, being the Chief Police Officer for the Australian Federal Police (AFP), has sought to set aside a subpoena issued on 26 October 2020 in proceedings SCC 228 of 2020.

The subpoena

(a)	Copies of all notes, records, reports, statements, complaints, memoranda, alerts, PROMIS entries, correspondence, or other documents, whether physical or electronic (including audio), referring to the supply or trafficking of amphetamines from 15 Crozier Circuit, Kambah in the Australian Capital Territory in the period 27 March 2019 to 27 March 2020.
(b)	Copies of all notes, records, reports, statements, complaints, memoranda, alerts, PROMIS entries, correspondence, or other documents, whether physical or electronic (including audio), referring to location of stolen gas bottles at 15 Crozier Circuit, Kambah in the Australian Capital Territory in the period December 2019 to 27 March 2020.
(c)	Copies of the affidavit and or other written material relied upon by Police in applying for the search warrant for search of a premises (15 Crozier Circuit, Kambah in the Australian Capital Territory) issued by the Deputy Registrar of the Supreme Court on 27 March 2020, pursuant to section 194 of the Crimes Act 1914 (Cth), limited to references to the supply/trafficking of amphetamines or the possession of stolen gas bottles.

The issue

3.       The only basis argued on the application to set aside the subpoena is that there is no legitimate forensic purpose.

Applicable legal principles

4.       The parties are agreed as to the relevant test. It has been helpfully and succinctly encapsulated in the judgment of Wigney J in the Federal Court of Australia, Gloucester Shire Council v Fitch Ratings [2016] FCA 587 at [22]. Although that is not a decision of this Court, more recent statements in this jurisdiction in relation to applications to set aside subpoenas on the basis of a lack of forensic purpose have in various ways

referred to the authorities cited in that paragraph of Wigney J’s judgment: see, for

example, Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 at [44]-[47]; Instyle
Estate Agents Gungahlin Pty Ltd v Hambrook [2020] ACTSC 293 at [22].

Submissions of the parties

5.       Mr Ginges, who appeared on behalf of the respondent to the application and on behalf of Ms Young (the party who issued the subpoena), says that the underlying issue in dispute between the parties is the validity of the warrant. He seeks on behalf of his

client to challenge the warrant on the basis that the officers involved did not have ‘a reasonable belief’ for obtaining the warrant in the first place, which they deposed to

having.

6.       He submits that the documents sought in the subpoena are relevant to that issue in this way: if nothing is produced, then that may assist Ms Young to make the argument that there was indeed no reasonable basis for the belief that led to the warrant being issued.

7.       Mr Hamack, who appeared on behalf of the AFP, submits, in essence, that it is mere speculation that Ms Young wants to run this argument. He argues that the material

that is currently before the Court more than justifies a ‘reasonable belief’.

Consideration of the arguments

8.       Mr Hamack may well be right, but as I explained during the hearing, that is an argument to be had on another day. The substantive issue is whether the belief was reasonable and the picture in that regard is currently incomplete. The Court on this application is not called upon to determine the merit or ultimate justification for the warrant.

9.       I accept that there may be further material that either contradicts the material already disclosed to Ms Young, or there may be an absence of material. In either case, that

may well “shed light on” (being the phrase used in the authorities) the evidence that is

already in existence and known to Ms Young. All that Ms Young is seeking to do in issuing the subpoena under challenge is test the evidence disclosed by the AFP as founding the warrant. She is entitled to do that. The evidence on this application takes the basis for the subpoena beyond mere speculation or fishing.

10.     Accordingly, I consider that the material sought under subpoena will materially assist the party at whose request the subpoena has been issued to agitate the argument, whatever its merit, about the validity of the warrant. I decline to set aside the subpoena.

11.     The order will be:

(1) The application in proceeding is dismissed.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: