Tasmania v Eather

[2013] TASSC 37

[2013] TASSC 37

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              Tasmania v Eather [2013] TASSC 37

PARTIES:  STATE OF TASMANIA
  v
  EATHER, Mark William

FILE NO:  180/2013
DELIVERED ON:  31 July 2013
DELIVERED AT:  Hobart
HEARING DATE:  22 July 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Procedure – Powers and duties of prosecution as to calling of witnesses and presenting evidence – Notice and disclosure to accused – Affidavits provided to officials who issued search warrants and listening device warrant.

Criminal Rules 2006 (Tas), r3H(3)(f).
Alister v R (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14; Carroll v Attorney-General (NSW) (1993) 78 A Crim R 162; Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498; Commissioner of Police (NSW) v Tuxford [2002] NSWCA 139; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65, referred to.
Aust Dig Criminal Law [3128]

REPRESENTATION:

Counsel:
           State:  M S Wilson
           Accused:  C J Gunson
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  FitzGerald & Browne

Judgment Number:  [2013] TASSC 37
Number of paragraphs:  11

Serial No 37/2013
File No 180/2013

STATE OF TASMANIA v MARK WILLIAM EATHER

REASONS FOR JUDGMENT  BLOW CJ

31 July 2013

1. The accused has been indicted on a charge of trafficking in fish, contrary to s264A(1) of the Living Marine Resources Management Act 1995. It is alleged that between about 17 January 2011 and about 6 October 2011 he trafficked in approximately 624.95Kg of rock lobster without lawful excuse. His counsel has made an application for orders under r3H(3)(f) of the Criminal Rules 2006 requiring the State to disclose to the legal practitioners for the accused the affidavits relied upon to procure the issue of seven warrants that were issued under the Search Warrants Act 1997, and another warrant that was issued under the Listening Devices Act 1991. The application was opposed.

1. Counsel for the accused informed me that the disclosure of the affidavits was sought for two reasons:

·    The legal representatives of the accused wish to make an assessment as to whether the evidence obtained as a result of the execution of the warrants is admissible, and therefore wish to see whether any of the affidavits were so deficient as to result in the invalidity of a warrant.

·    As it is suspected that the deponents of the affidavits may be called as Crown witnesses on the trial, the legal representatives of the accused wish to see what representations of fact they made on oath when warrants were applied for.

1. Counsel for the accused made a submission to the effect that, without the disclosure of such affidavits, any impropriety relating to the issue of a warrant would be very likely to go undetected, with the result that invalid warrants could be treated as valid.  I accept that there may sometimes be cases when the non-disclosure of such affidavits may produce such a result.

1. The issue of subpoenas in the criminal jurisdiction of this Court was abolished by the Criminal Procedure (Attendance of Witnesses) Act 1996. There are now two mechanisms whereby an accused person can, when appropriate, get the Court or an officer of the Court to compel the production or disclosure of documents. The accused can get the Registrar to issue a final notice under s10 of the 1996 Act requiring a witness to attend to give evidence and to produce such documents as may be specified in the notice. Alternatively, the accused can obtain an order of a judge under r3H(3)(f). Amongst other things, that provision empowers a judge to "make any order necessary or convenient … to ensure the fair and expeditious conduct of the trial".

1. In R v Turner (No 10) [2001] TASSC 100 at par[16], I took the view that the principles applicable to the issue and setting aside of subpoenas should be applied to a notice to a witness issued pursuant to the 1996 Act. In my view the same principles should also be applied to any application for the production or disclosure of documents pursuant to the Criminal Rules.  There is nothing in those rules to suggest that any different principles should be applied. 

1. A party is not entitled to use a subpoena for the purpose of "fishing", ie to seek documents, not for the purpose of supporting his or her case, but to discover whether there is a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. When an issue arises as to whether a subpoena serves any legitimate forensic purpose, it is the duty of the Court to require the issuing party to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought, and to refuse access unless such a purpose is identified: R v Saleam (1989) 16 NSWLR 14; Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 at 504.

1. There may be a sufficient forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence: Alister v R (1984) 154 CLR 404 at 414; Carroll v Attorney-General (NSW) (1993) 78 A Crim R 162; R v Saleam [1999] NSWCCA 86 at par[11]; Commissioner of Police (NSW) v Tuxford [2002] NSWCA 139 at par[20]; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65. That is to say, there needs to be something beyond speculation, or some concrete ground for belief that the documents will support the case of the issuing party: Alister at 456; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439.

1. Nothing was said in the submissions made to me, and there is nothing in the material before me, to suggest anything stronger than a speculative possibility that disclosure of any of the relevant affidavits would assist the accused in any way.  There is no reason to think that disclosure of any of the affidavits is necessary for the accused to receive a fair trial.

1. A little more should be said about the strength (if that is the right word) of the chance that disclosure of the affidavits would result in any of the eight warrants being held invalid.  Copies of the warrants have been provided to defence counsel.  There is no suggestion that any warrant was bad on its face.  It is clear that the validity of a search warrant or a listening device warrant can be attacked in the context of a criminal trial: Love v Attorney-General (NSW) (1990) 169 CLR 307; Coco v R (1994) 179 CLR 427; Ousley v R (1997) 192 CLR 69. However it is also clear that the scope of such a collateral challenge to the validity of a warrant is closely confined, and does not include questioning the sufficiency of the material placed before the officer who issued it: McArthur v Williams (1936) 55 CLR 324 at 365 – 366; Murphy v R (1989) 167 CLR 94 at 104 – 106; Ousley v R (above) at 79, 87, 101 – 103, 125 – 126; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356 at pars[27], [94], [151]; Tasmania v Salter [2007] TASSC 33 at par[5]; R v Baladjam (No 28) [2008] NSWSC 1449 at par[49]. Thus, even if one or more of the affidavits revealed that insufficient information had been provided for the issue of a warrant to be justified, that would not strengthen the accused's chances of having that warrant declared invalid. It may be that, when appropriate, the validity of such warrants can be challenged on the basis of fraud, misrepresentation, or unreasonableness in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. However there is no reason to think that any of the affidavits whose disclosure is now sought would assist the accused in relation to any such ground of invalidity.

1. R v Baladjam (No 28) (above) involved an application similar to this.  For the purposes of a criminal trial, the lawyers acting for one of the accused served a subpoena on the New South Wales Crime Commission requiring it to produce the affidavits that had been sworn for the purpose of obtaining a number of telecommunications interception warrants.  The Commission applied to have the subpoena set aside.  Whealy J ordered that it be set aside after concluding, in effect, that the "on the cards" test was not satisfied.  At par[60] his Honour said:

"No matter how it is dressed up in argument, the plain position is that the lawyers for Khaled Cheikho are attempting to have access to the materials used as a basis for the issue of the warrants (and other materials relevant to the execution of the warrants) in the hope that something will emerge from the material which will allow or provide a possible basis for attack on the warrants themselves.  This is simply not permissible."

1. The present application is purely speculative.  To grant it would involve a radical departure from the established principles regarding the compulsory production of documents.  If disclosure of the affidavits in question were necessary for the accused to receive a fair trial, the State should have disclosed them, and an order for their disclosure would be appropriate.  However, since there is no reason to think that their disclosure would have any real likelihood of assisting the accused, I do not think it can be said that their disclosure is necessary in order for him to receive a fair trial. For these reasons, I have decided to refuse the application.