The Queen v David Alexander Salasch

[2001] ACTSC 70

The Queen v David Alexander Salasch
[2001] ACTSC 70 (20 July 2001)

CATCHWORDS

COSTS – application for costs of motion to set aside subpoena or to be excused from compliance with subpoena – subpoena returnable without notice to prosecution on date in advance of trial – no apparent forensic purpose for issuing subpoena – compliance with subpoena not pressed at hearing of application – costs of application and of production of documents for which privilege claimed awarded against applicant on indemnity basis.
CRIMINAL PROCEDURE – whether subpoena issued in advance of arraignment or date of trial is issued in a criminal proceeding – it is not - civil rules as to costs apply.

Supreme Court Rules, O 39 r 32, O 80
Supreme Court Act 1930, s 23(1)

Alister and Others v The Queen (1984) 154 CLR 404
R v Barbaro (1992) 108 ACTR 1
Greyhound Australia Pty Ltd and othersvDeluxe Coachlines Pty Ltd and others (1986) ALR 93; 11 FCR 592
R v Goia (1988) 81 ALR 656; 35 A Crim R 473

No. SCC 95 of 1998

Judge:          Miles CJ
Supreme Court of the ACT
Date:           20 July 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCC 95 of 1998
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:THE COMMISSIONER OF POLICE

Plaintiff

AND:DAVID ALEXANDER SALASCH

Defendant

(THE QUEEN

AGAINST

DAVID ALEXANDER SALASCH)

ORDER

Judge:  Miles CJ
Date:  20 July 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The defendant pay the costs of the Commissioner in relation to the notice of motion and in relation to compliance with the subpoena on an indemnity basis.

1. This is an application for costs made by the Commissioner of Police (the Commissioner) under O 80 of the Supreme Court Rules against David Alexander Salasch (David Salasch), who, at the time of the application, had been committed for trial in this Court. He has since pleaded guilty.

1. On 11 May 2001 the Commissioner caused to be issued a notice of motion under O 80 r 13 returnable on 14 May 2001 seeking various orders including:

·     

an order that a subpoena addressed to the Commissioner dated 9 March 2001 (the

subpoena) be set aside;

·     alternatively an order that the Commissioner be excused from producing the documents listed in par (ii) of List 1 in the schedule to the subpoena;

·     an order that David Salasch pay the Commissioner’s costs of the motion on a full solicitor/client indemnity basis.

1. The notice of motion purported to be issued in proceedings between the Queen and David Salasch and bore the number SCC 95 of 1998 which the Registry had assigned to those proceedings.

1. The subpoena was a subpoena to produce documents for the purpose of evidence before the Court on 23 March 2001.  The documents required to be produced were set out in the schedule as follows:

“Originals or certified copies of tapes and transcripts of all interviews, records of interviews and records of conversations - between the Australian Federal…