The State of Western Australia v Rayney [No 2]
[2012] WASC 38
•9 FEBRUARY 2012
THE STATE OF WESTERN AUSTRALIA -v- RAYNEY [No 2] [2012] WASC 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 38 | |
| 09/02/2012 | |||
| Case No: | INS:83/2011 | 24 JANUARY 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 30/01/12 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Applications to cancel witness summonses in part successful | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA LLOYD PATRICK RAYNEY |
Catchwords: | Criminal procedure Witness summonses for production of details and documents Applications by Commissioner of Police for cancellation of summonses Meaning of 'relevant to the case' Meaning of 'legitimate forensic purpose' Whether legitimate forensic purpose established Criminal Procedure Act 2004 (WA), s 159 and s 166 |
Legislation: | Criminal Procedure Act 2004 (WA) |
Case References: | Alister v the Queen (1984) 154 CLR 404 Attorney General (NSW) v Dylan Chidgey [2008] NSWCCA 65 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 at 21, Burmah Oil Co Ltd v Bank of England [1980] AC 1090 Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Connell v The Queen (No 6) (1994) 12 WAR 133 Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 Esso Australia Resources Ltd v FCT (1999) 201 CLR 49 Hamilton v Oades (1989) 166 CLR 486 Maddison v Goldrick [1976] 1 NSWLR 651 Mandic v Phillis (2005) 225 ALR 760 Mansell v The State of Western Australia [2011] WASC 170 McIlkenny v The Queen (1991) 93 Cr App Rep 287 McPhail v The Queen (1988) 36 A Crim R 390 Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 R v Brown (Winston ) [1994] 1 WLR 1599, 1606; [1995] 1 Cr App Rep 191 R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406 R v Saleam [1999] NSWCCA 86 Ragg v Magistrates Court of Victoria [2008] VSC 1 Ran v The Queen (1996) 16 WAR 447 Roads and Traffic Authority v Connolly [2003] NSWSC 327 Stanley v Layne Christensen Co [2004 ] WASCA 50 The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514 The State of Western Australia v Kenner and Stanes (Unreported WASC, 9 July 2009) Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
LLOYD PATRICK RAYNEY
Accused
Catchwords:
Criminal procedure - Witness summonses for production of details and documents - Applications by Commissioner of Police for cancellation of summonses - Meaning of 'relevant to the case' - Meaning of 'legitimate forensic purpose' - Whether legitimate forensic purpose established - Criminal Procedure Act 2004 (WA), s 159 and s 166
Legislation:
Criminal Procedure Act 2004 (WA)
(Page 2)
Result:
Applications to cancel witness summonses in part successful
Category: A
Representation:
Counsel:
Prosecution : Mr J L S O'Sullivan
Accused : Mr A G Elliott
Applicant : Mr J L S O'Sullivan
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Timpano Legal
Applicant : Commissioner of Police
Case(s) referred to in judgment(s):
Alister v The Queen (1984) 154 CLR 404
Attorney General (NSW) v Dylan Chidgey [2008] NSWCCA 65
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 at 21,
Burmah Oil Co Ltd v Bank of England [1980] AC 1090
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Connell v The Queen (No 6) (1994) 12 WAR 133
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Esso Australia Resources Ltd v FCT (1999) 201 CLR 49
Hamilton v Oades (1989) 166 CLR 486
Maddison v Goldrick [1976] 1 NSWLR 651
Mandic v Phillis (2005) 225 ALR 760
Mansell v The State of Western Australia [2011] WASC 170
McIlkenny v The Queen (1991) 93 Cr App Rep 287
McPhail v The Queen (1988) 36 A Crim R 390
(Page 3)
Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498
R v Brown (Winston ) [1994] 1 WLR 1599; [1995] 1 Cr App Rep 191
R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406
R v Saleam [1999] NSWCCA 86
Ragg v Magistrates Court of Victoria [2008] VSC 1
Ran v The Queen (1996) 16 WAR 447
Roads and Traffic Authority v Connolly [2003] NSWSC 327
Stanley v Layne Christensen Co [2004 ] WASCA 50
The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514
The State of Western Australia v Kenner and Stanes (Unreported WASC, 9 July 2009)
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90
(Page 4)
- COMMISSIONER SLEIGHT:
(This decision was delivered orally and has been edited from the transcript).
1 Mr Rayney has been charged with the wilful murder of his wife, Mrs Corryn Rayney. Solicitors acting on behalf of Mr Rayney have filed and served five witness summonses against the Commissioner of Police to produce various documents. A description of the documents sought will be described later in this decision.
2 The witness summonses are issued pursuant to s 159 of the Criminal Procedure Act 2004 (the Act). Section 159(1) relevantly provides:
On application of a party to a case, a prescribed court officer may -
(a) issue one or both of the following to an individual (the witness) -
(i) a witness summons that requires the witness to attend the court and give oral evidence in the case;
(ii) a witness summons that requires the witness to attend the court and produce to the court a record or thing that is relevant to the case. (emphasis added)
(1) On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it thinks fit.
(2) On such an application the court may order a party to the application to pay all or some of another such party’s costs.
Legal principles
4 The primary test under s 159 of the Act is that the record or thing to be produced is 'relevant to the case'.
5 A preliminary issue that arises in this matter is whether s 159 of the Act operates to change the law as it exists at common law.
6 At common law, the court has an inherent jurisdiction to disallow a witness summons which is an abuse of process: Mandic v Phillis (2005) 225 ALR 760 [33] - [34] (Conti J); Hamilton v Oades (1989) 166 CLR
(Page 5)
- 486, 502 (Deane & Gaudron JJ). A subpoena at common law will be an abuse of process if it is not for a legitimate forensic purpose. Mandic v Phillis (771); Trade Practices Commission v Arnotts Ltd(No 2)(1989) 21 FCR 306; 88 ALR 90, 102 (Beaumont J).
7 At common law it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to identify, expressly and precisely, the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made. Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498, 504;R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406; Maddison v Goldrick [1976] 1 NSWLR 651; McPhail v The Queen (1988) 36 A Crim R 390; Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1113 - 1114; Attorney-General (NSW) v Stuart(1994) 34 NSWLR 667; (1994) 75 A Crim R 8, 21, 681 (Hunt CJ); The State of Western Australia vChristie [2005] WASC 214; (2005) 30 WAR 514, 519 (Christie's case); Ran v The Queen (1996) 16 WAR 447, 456 (Scott J).
8 The more controversial issue at common law seems to be what is meant by 'legitimate forensic purpose'.
9 InStanley v Layne Christensen Co[2004 ] WASCA 50 [9], the Full Court approved a statement by Master Sanderson that there were four points of principle relevant to whether a subpoena is for a legitimate forensic purpose. These four principles were described as follows (excluding quoted authorities):
1. A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross examination.
2. In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity to having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross examination to refute unforeseen evidence – in – chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse
- of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings. (my emphasis)
- 3. At least one object of the rule pertaining early return of subpoenas is to appraise the parties of the strengths and weaknesses of the case at an early stage. Hence no narrow view as to the legitimate purposes of a subpoena ought to be taken.
4. There is no requirement that to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading issues to which the evidence sought would be irrelevant. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.
10 Stanley v Layne Christensen Co was a civil case. A more liberal approach is appropriate when proceedings are criminal in nature; Christie's case (519); Alister v The Queen (1984) 154 CLR 404 (Gibbs CJ, Murphy & Brennan JJ). This is because an overarching principle is that the right to fair disclosure is an inseparable part of an accused's right to a fair trial: Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154, 189 (Steytler J);R v Brown (Winston ) [1994] 1 WLR 1599, 1606; [1995] 1 Cr App Rep 191, 198 (Steyn J).
11 Another consideration that should also be taken into account is the disadvantages the adversarial system may cause to an accused person as a result of the uneven match in resources. This disadvantage is in part ameliorated by the obligation on the part of the prosecution to make available all material which may prove helpful to the defence: McIlkenny v The Queen(1991) 93 Cr App Rep 287, 312.
12 A case heavily relied upon in these proceedings by counsel for the Commissioner of Police is the decision of Beazley JA in Attorney General (NSW) v Dylan Chidgey [2008] NSWCCA 65. In that case, Beazley JA quoted with approval at [64] and [80] the decision of Simpson J in R v Saleam [1999] NSWCCA 86 [11] as follows:
The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case.
(Page 7)
13 The genesis of the expression 'on the cards' is to be found in the judgment of Gibbs CJ in Alister v The Queen (414). It is significant that Gibbs CJ upheld a subpoena although the applicants who sought production of the documents were unable to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant's case. However notwithstanding these limitations Gibbs CJ observed that it was not unreasonable to believe the documents were in existence and that a document may support the defence of the applicant who was seeking production of the documents (the documents sought were ASIO files).
14 Beazley JA in Chidgey'scase stated at [67] that it was important and instructive to understand the manner in which Gibbs CJ saw the test at a practical level. Gibbs C J stated as follows:
Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence (my emphasis). If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not seen to be done (414). (emphasis added)
15 The 'on the cards' test was approved by the Full Court of Western Australia in the decision of Connell v The Queen (No 6) (1994) 12 WAR 133, 203.
16 The application of the 'on the cards' test is not without practical difficulties and it was these difficulties that prompted attempts to further define the test by using wording such as 'a reasonable chance that the material will assist the defence' (Roads and Traffic Authority v Connolly [2003] NSWSC 327 (Adams J)) and 'a reasonable possibility that the sought after information will assist the defence; (Ragg v Magistrates Court of Victoria [2008] VSC 1 (Bell J)).
17 In Ragg's case Bell J stated:
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is
(Page 8)
- sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. This is a low threshold, but it is a threshold [96]. (emphasis added).
18 Beazley JA, in Chidgley's case, went on to discuss both of these attempts to further define the test and rejected such attempts insofar as they suggested that mere relevance was enough: [60] and [80]. Beazley JA favoured expressing the test in the same language as in Alister and Saleam (that is, is it 'on the cards' that the documents will materially assist the case of the party seeking the production of the documents).
19 McKechnie J in Christie'scase [519] expressed the test as 'a reasonable possibility that production will materially assist the defence'.
20 The test, however expressed, must take into account that a legitimate forensic purpose may relate to the issue of credit. In Ran v The Queen, Franklyn J said:
The identification of such material must in almost every criminal case depend upon the case run by the defence and the evidence given. It seems to me essential that an application to inspect documents with a view only to cross examine and or lead evidence as to credit requires a clear identification of some basis justifying access to the documents, that is to say some area in which the documents may, for an identifiable reason, be said to carry at least the probability of materially assisting the defence by having a substantial effect on credibility (451).
21 The views expressed by Franklyn J must be understood in the context that he was not dealing with a challenge to the witness summons, but a challenge to the right to inspect. At this stage of the process, the court has the advantage that it may inspect the documents itself and may make a more informed judgment about the legitimate forensic value of the documents.
22 In the matter of The State of Western Australia v Kenner and Stanes (Unreported WASC, 9 July 2009), Hall J appeared to apply a slightly different test before a summons for production of a document will be upheld, requiring a probability (as opposed to a reasonable possibility) that the document will assist the defence. Hall J stated:
Accordingly in my view the accused must firstly clearly identify a basis justifying access to the documents. Secondly, there must be a concrete ground for belief, not merely speculation, that the documents will assist the defence. Thirdly, that there must be a probability of materially assisting the defence. Fourthly, if the matter relates to issues of credibility
(Page 9)
- it must be probable that the documents would have a substantial effect on credibility (ts 55).
23 Taking into account the different formulations, I conclude the test at common law can be most adequately expressed by using the expression 'a reasonable possibility that the documents will materially assist the defence case'. This formula I believe is preferable to the more colloquially expressed test 'on the cards' and adequately equates with the other comments reflected in the authorities as to how the principles operate in a practical sense.
24 In The State of Western Australia v Kenner and Stanes, Hall J went on to state:
It is also important to take into account the disclosure provisions of the Criminal Procedure Act. Section 42 which defines evidentiary material imposes upon the prosecution an obligation to disclose material which could materially assist the defence and s 95 provides that the disclosure obligation is a continuing one. If properly complied with there should be little occasion for issuing summonses to the prosecution authorities. I am not prepared in the absence of evidence to conclude that the police and the DPP are not complying with the disclosure obligations set out in the Criminal Procedure Act (ts 55).
25 I do not understand Hall J is suggesting that there is a presumption that the State will comply with its obligation to disclose. However, if disclosure has been given, to require repetition of production of material in response to a witness summons would be an abuse of process. If the State gives an undertaking to the court that it has provided full disclosure, then the accused in such circumstances will have to produce some concrete evidence to suggest that there is a reasonable possibility that there are other records or things in the possession of the party subpoenaed that will materially assist the defence case.
26 At common law, a subpoena may also be set aside as an abuse of process on the basis that it is oppressive: see Mandic v Phillis (772);Trade Practices Commission v Arnotts Ltd,Hamilton v Oades (502). A witness summons may be oppressive because it does not describe the documents to be produced with sufficient particularity. It is a value judgment to be made by the court taking into account all the circumstances, including the issues in question, the relevance of the requested documents and the effort and expense in complying with the request. The obligation to describe the documents with sufficient particularity is encapsulated in s 161(2)(b) of the Actwhich requires the
(Page 10)
- witness summons to describe in 'reasonable detail' the record or thing that the witness is required to produce to the court.
27 The next issue is whether s 159 of the Act changes the common law. None of the authorities in Western Australia that I have referred to in this decision gave consideration to the language of s 159. The Criminal Procedure Act 2004 was introduced as a part of a rewriting of the criminal law procedures following the Law Reform Commission's report, Review of the Criminal and Civil Justice System in Western Australian, Project 92, September 1999. As result of the recommendations made by the Commission, preliminary hearings were abolished in Western Australia. To replace some of the safeguards that the preliminary hearing procedure provided to an accused person, the Actprovides an obligation on the State to give full disclosure to an accused of 'evidentiary material'. The definition of 'evidentiary material' includes 'a copy of every other document or object that may assist the accused's defence' (s 42(1) of the Act).
28 Against this background I conclude that the words 'relevant to the case'in s 159 are to be given a meaning confined to relevance only. However, this test is a threshold issue only. It has the purpose of preventing the issue of a witness summons to produce a record or thing that has no relevance to the case.
29 I conclude that the common law principles of an abuse of process as outlined earlier in this decision (including the requirement that when a witness summons is challenged the party filing the witness summons must establish a legitimate forensic purpose) are retained. I believe this is evident by the fact that s 166 of the Act provides no criteria as to the basis upon which an application may be made to cancel a witness summons either wholly or in part. It is unlikely that the legislation would have intended to overthrow fundamental principles of the common law which I have dealt with earlier in this decision, without establishing a fresh criteria for challenging a witness summons. This is consistent with what McKechnie J said in Christie's case:
As I read the authorities to which I have made reference, and the Criminal Procedure Act, there is to be discerned a general intention that in order to ensure a fair trial, the State has an obligation to ensure that the fruits of an investigation are in general terms made available to the defence. There seems to remain, however, two qualifications to that broad-ranging and general duty. The first qualification is that, at least in matters which are not specifically enumerated within the Criminal Procedure Act as evidentiary material or confessional material, there is an onus on the
(Page 11)
- defence to show some legitimate forensic purpose in the disclosure of the material; that is, a reasonable possibility that production will materially assist the defence. The second qualification is that even if there is shown to be a legitimate forensic purpose, the material may nevertheless be prevented from disclosure on the grounds of a public interest immunity [2].
Witness summonses
30 I will now deal with the application by the Commissioner of Police in relation to each individual witness summons. In doing so I must take into account the context in which these witness summonses have issued. Mr Rayney's trial is listed for 100 days commencing on the 14 May 2012. To date the State has served on Mr Rayney's solicitors a large quantity of material under the rules of disclosure. The material includes a large quantity of written and electronic data (including intercepted telephone calls and visually recorded surveillance material). The burden created by the disclosure requirements on both the prosecution and the defence was recognised by McKechnie J in the decision of Mansell v The State of Western Australia [2011] WASC 170 where he stated:
A prosecutor or a police officer may not know what the defence might regard as relevant to the charge or what the defence might regard as assisting it. Increasingly, the prosecution and the police disclose everything to the defence thus avoiding the necessity of making a judgment about relevance or assistance which they may be ill-equipped to make in any event. As a result, even a simple trial requires more preliminary work and preparation than previously. The prosecution or police have to devote resources to collating and copying all material on the chance that it may be relevant or of assistance, and the defence must go through all the material to determine whether it is relevant or of assistance. The burden falls on each. Increasingly, the listing of trials is delayed firstly, by the prosecution's duties under the disclosure requirement, and then, as here, the significant burden on the defence in having to analyse all the material in case there is something within it that may be useful or open up a line of inquiry [17].
31 In broad terms the witness summonses issued by the solicitors acting for Mr Rayney against the Commissioner of Police are said to be for the purpose of assisting the defence in analysing all the material that has been served on them so as to ensure that they are ready to proceed to trial in time.
Witness summons number 1 dated 7 December 2011
32 The first summons requires the Commissioner of Police to produce to the court the following:
(Page 12)
- 1. Electronic copies of all spreadsheets (in XLS format) created by WAPOL in connection with 'Operation Dargon' or the investigation(s) into the death of Corryn Rayney;
2. Details relating to any and all CCTV, DVD, security or other footage, photographs or images which depict the accused, or his vehicle or Corryn Rayney's vehicle; and
3. The originals of any and all CCTV, security and other footage, photographs or images which depict the accused, or his vehicle or Corryn Rayney's vehicle.
33 The Commissioner of Police objects to this witness summons on the following grounds:
Item 1
1. Item 1 of the witness lacks particularity and is oppressive.
2. No legitimate forensic purpose has been identified for which production of the records is sought.
Item 2
3. Item 2 of the witness summons is ambiguous and lacks particularity.
4. 'Details' is not a record or thing capable of being produced.
5. No legitimate forensic purpose has been identified for which production of the records is sought.
Item 3
6. Copies of the records in item 3 have been provided by way of disclosure and it is oppressive to require the production of records that have already been provided.
7. No legitimate forensic purpose has been identified for which production of the records is sought.
Item 1.
34 As to item 1, it is not in dispute that as a part of the disclosure provided by the State in the prosecution against Mr Rayney there are spreadsheets. Mr Rayney is seeking copies of other spreadsheets which may assist his legal representatives in analysing all of the material disclosed. Also, Mr Rayney is seeking that the spreadsheets produced be in XLS format to facilitate cutting and pasting of information from the spreadsheets.
(Page 13)
35 Counsel for the Commissioner of Police submits that the description of the documents sought is oppressively wide and would cover such records as overtime spreadsheets for investigating officers. Further, it is contended that no legitimate forensic purpose has been identified. It is submitted that the purpose of the requested documents relates to preparation of trial only and that it has not been demonstrated that the documents sought will materially assist the defence case.
36 I do not accept that a legitimate forensic purpose cannot include documents sought to assist the preparation of trial in the manner described by counsel for Mr Rayney in his submissions. In this case, the accused having the means to adequately analyse the material provided under disclosure requirements is fundamental to the accused receiving a fair trial by being able to conduct his defence in a timely and an informed way. However, I accept the submission by counsel for the Commissioner of Police that the use of the word 'spreadsheets' is too wide. However, given the short time available to prepare for trial, I will allow an application by counsel for Mr Rayney to amend the summons by adding after the words 'spreadsheet (in XLS format)' the words 'pertaining to any material served on the accused by way of disclosure'.
37 I do not accept that under a witness summons the Commissioner of Police can be required to place any documents to be produced into a particular format. If the spreadsheets are already in the XLS format then they are required to be produced in this format. However if they are not in this format, then the solicitors for Mr Rayney will need to raise this issue as a case management issue before the trial judge at the next directions hearing if they require the spreadsheets in that format and they are unable to receive the cooperation of the State.
Item 2
38 The purpose of item 2 of the witness summons is disclosed in submissions presented by counsel for Mr Rayney. It is contended that the State has disclosed hundreds of files which contain moving images. These files are not indexed and are stored according to an exhibit or action number. It is contended that the files run for hours and the task of examining each individual file is extremely onerous. It is contended that it can be presumed the police will have already completed such an examination of the files. To alleviate the difficulty of the respondent examining all the video material, the respondent seeks from the Commissioner of Police details as to what footage or images show the accused, or his vehicle, or a vehicle of the deceased Corryn Rayney. It is
(Page 14)
- for this reason that the summons seeks 'details'. However in my opinion it is not the proper subject of a witness summons to request 'details'. A witness summons cannot act as an interrogatory. The request for 'details' is not a request for something that is a 'record or thing' within the meaning of is 159. In my opinion the requirement to produce 'a record or thing' must relate to an animate or inanimate item, that is a physical object. A request for details should be directed to the prosecutor and, if the matter is not resolved, raised before the court as a part of case management procedures.
39 For the above reasons I conclude the requirement in a witness summons to produce such details is an abuse of process. I will cancel item 2 on the witness summons.
Item 3
40 As to item 3 on the witness summons, the respondent wishes to inspect the originals of the material described. It is conceded that they have been provided copies of these items as a part of disclosure. However, there are obvious legitimate forensic reasons why Mr Rayney's legal representatives may wish to inspect the originals and not disclose to the Commissioner of Police the reasons for the inspection. The originals are clearly relevant and should be available for inspection by the accused and his legal representatives.
41 The Commissioner of Police has agreed to allow Mr Rayney and his legal representatives to inspect the originals of the documents described in the witness summons but has indicated that if Mr Rayney attends then the inspection will be video recorded. Solicitors for Mr Rayney object to this condition on the basis that Mr Rayney should be free to discuss the material with his solicitors and make gestures without being video recorded.
42 Counsel for the Commissioner of Police has argued that the police should not be required to produce the material to the court, as the Commissioner of Police has a responsibility for securing the material. However, if the record is produced to the court in response to the witness summons, the record will be held in the custody of the court and produced at trial, or returned after inspection to the Commissioner of Police (see s 159(3) and (4) of the Act).
43 I do not accept that on the face of it the condition set by the Commissioner of Police to video record the inspection of the originals is a reasonable condition. No reason has been advanced to me as to why the
(Page 15)
- inspection should be video recorded if Mr Rayney attends the inspection. Further, I reject the contention that the original material must remain in the possession of the police pending trial for security reasons. If the material is placed in the custody of the court, the security of the material is maintained.
44 Accordingly the application to cancel item 3 of the witness summons is dismissed.
Witness summons number 2 dated 9 December 2011
45 The second witness summons requires the Commissioner of Police to produce to the court the following:
1. Copies of all documents, letters, memoranda, emails, scanned documents, faxes and briefing notes between the Major Crime Section of the Western Australian Police Service ('Major Crime') and the Dedicated Source Unit of the Western Australian Police Service ('Dedicated Source Unit');
2. Running sheets, surveillance logs, and VIPER entries prepared by members of the Dedicated Source Unit; and
3. Copies of any statements (and drafts thereof), whether signed or unsigned, prepared by any members of the Dedicated Source Unit.
46 By consent the parties have agreed that the application by the Commissioner of Police to cancel this witness summons should be adjourned sine die. Accordingly, the application by the Commissioner of police is adjourned sine die.
Witness summons number 3 dated 9 December 2011
47 The third witness summons requires the Commissioner of Police to produce to the court the following:
1. Details of, copies of recordings of, and copies of transcripts (if any) of:
(a) intercepted telephone calls (whether pursuant to statutory or other authority or not) on telephones used by lawyers acting for the accused;
(b) intercepted telephone calls (whether pursuant to statutory or other authority or not) involving discussions between the accused and any lawyers acting for the accused;
- (c) intercepted or monitored conversations held in person between the accused and any lawyers acting for the accused;
- 2. Details of any intercepted data transmissions:
(a) to or from any lawyers acting for the accused;
(b) to or from the accused; and
(c) between the accused and any lawyers acting for the accused.
3. And in respect of any such categories of material, all other documents or records relevant to the acquisition of the recordings in item 1 above and or the intercepted data transmissions in item 2 above.
48 The Commissioner of Police objects to this witness summons on the following grounds:
Item 1
1. Item 1 of the witness summons lacks particularity.
2. Copies of the records in item 1 have been provided by way of disclosure and it is oppressive to require the production of records that have already been provided.
3. No legitimate forensic purpose has been identified for which production of the records is sought.
Item 2
4. Item 2 of the witness summons is ambiguous and lack [sic] particularity.
5. No legitimate forensic purpose has been identified for which production of the records is sought.
Item 3
6. No legitimate forensic purpose has been identified for which production of the records is sought.
49 The background to this summons is that it is apparent from material disclosed by the prosecution that the police have intercepted telephone calls of the accused Mr Rayney. The accused has also been subject to surveillance. The accused seeks in broad terms to have the Commissioner of Police produce records (whether legally obtained or not) of intercepted
(Page 17)
- telephone calls and conversations between the accused and his lawyers, and telephone calls and conversations between the accused's lawyers. The legitimate forensic purpose identified by Mr Rayney's counsel in his submissions was that it will be argued at trial that the police investigation into the death of Mrs Corryn Rayney was not sufficiently thorough and impartial so as to adequately investigate the possibility that some other person committed the offence. It is submitted that if the police have intercepted telephone calls or conversations between Mr Rayney and his lawyers, or telephone calls or conversations between Mr Rayney's lawyers (either illegally or when clearly subject to professional legal privilege), then this will go to support the contention that the police had an obsession to charge Mr Rayney without investigating adequately the possibility of other persons having committed the offence.
50 A second legitimate forensic purpose advanced was that Mr Rayney is entitled to know whether the police are eavesdropping on conversations between himself and his legal advisers; and conversations between his various legal advisers.
51 I now turn to the specific items of the summons.
Item 1
52 Firstly, in relation to item 1, the request for 'details' is not a request for something that is a 'record or thing' within the meaning of is s 159, for reasons I explained earlier in this decision. Accordingly, the request for 'details' will be deleted from the summons. What then remains is a request to produce 'copies of recordings of, and copies of transcripts (if any) of' three items of material:
(a) intercepted telephone calls on telephones used by lawyers acting for the accused (I take this to mean recordings obtained by intercepting telephone devices of the lawyers acting for Mr Rayney);
(b) intercepted telephone calls involving discussions between the accused Mr Rayney and lawyers acting for him;
(c) intercepted or monitored conversations held in person between the accused and any lawyer acting for the accused.
53 As to (a) above the Commissioner of Police says there are no such documents in existence. This response discharges the summons in relation to this item.
(Page 18)
54 As to (b) and (c) above, the Commissioner of Police says all intercepted or monitored calls or conversations in which the accused is a party have been provided as part of disclosure or made available to the accused for inspection. In response to this, Mr Rayney's counsel says, given the volume of the intercepted telephone calls or monitored conversations disclosed, it is not possible for the accused to isolate and identify those conversations which relate to (b) and (c) above. However, in my opinion that is an issue to be resolved by case management orders and not by the issue of the witness summons. In my opinion it would be an abuse of process to require the Commissioner of Police to again produce such recordings, and copies of transcript, if they have already been produced as part of disclosure or made available for inspection solely for the purpose of isolating or identifying such recordings.
55 Counsel for the Commissioner of Police says that the intercepted telephone calls or conversations not included in the material disclosed by the State were excluded from the disclosure on the Commissioner's assessment of their relevance. This of course, is a subjective assessment. At this stage, I will give the respondent an opportunity to conduct any inspection of documents not included in the disclosed material and, in the meantime, adjourn the witness summons on this item sine die in case there remain outstanding issues.
Item 2
56 As to item 2, I repeat that a request for details is not a request for 'a record or thing' within the meaning of s 159 of the Act. Again this is an issue that should be raised as a case management issue.
57 A further issue raised is whether any legitimate forensic purpose has been established for requesting details of intercepted data transmissions. Firstly, as to the legitimate forensic purpose claimed in relation to the allegation that the investigation was not sufficiently thorough and impartial, it was conceded by counsel for Mr Rayney that this alleged legitimate forensic purpose could not relate to any calls involving Mr Rayney. This is because the police would be entitled in the investigation to place Mr Rayney under surveillance once he was a suspect and if calls with his lawyers were caught up in the net of such surveillance that could not support the contention of an impartial investigation. Likewise I reject the suggestion that there is a legitimate forensic purpose in seeking a record or thing to establish whether any conversations between Mr Rayney in his lawyers are being monitored. The position may be different in relation to intercepted data transmissions
(Page 19)
- between lawyers acting for Mr Rayney but I need not rule on this question in view of my conclusion concerning seeking 'details'.
58 For the above reasons, the application of the Commissioner of Police is upheld and this item of the witness summons is cancelled.
Item 3
59 As to item 3, it has been identified that the purpose of this request for production is to obtain a copy of any warrant obtained in relation to intercepted telephone calls between the accused and his lawyers, and between the accused's lawyers. The Commissioner of Police says that copies of any warrants obtained are part of the disclosure that has already been provided. Counsel for Mr Rayney says that the accused's representatives have been unable to locate any such warrants due to the volume of material that has been disclosed.
60 In my opinion it is a legitimate forensic purpose for lawyers acting for Mr Rayney to obtain a copy of any warrant which authorised the interception of any telephone recordings between Mr Rayney and other persons. Although it may have been included as a part of the voluminous material the subject of disclosure, it is unlikely to be onerous for either the Director of Public Prosecutions or the Commissioner of Police to identify for the defence where copies of any relevant warrants are located in the disclosed material. In the circumstances I propose that this item of the witness summons be adjourned sine die with a view to cooperation resolving the matter. If cooperation does not resolve the issue then I will make an order that item 3 of the summons be upheld.
Witness summons number 4 dated 5 January 2012
61 The fourth summons requires the Commissioner of Police to produce to the court the following:
Copies of all briefing notes supplied by members of the Western Australian Police Service to the Office of the Commonwealth Director of Public Prosecutions in connection with 'Operation Dargan, or the investigation(s) into the death of Corryn Rayney, or any investigation into the accused.
62 The Commissioner of Police says there are no documents in the possession of the Commissioner which meet this description. It is accepted that this discharges the Commissioner of Police from further obligation.
(Page 20)
63 Accordingly, the witness summons is discharged by compliance and the application by the Commissioner of Police is dismissed.
Witness summons number 5 dated 5 January 2012.
64 The fifth witness summons requires the Commissioner of Police to produce to the court the following:
Copies of all briefing notes supplied by members of the Western Australian Police Service to legal officers in the employment of the Western Australian Police Service or seconded to work for the Western Australian Police Service in connection with 'Operation Dargan, or the investigation(s) into the death of Corryn Rayney, or any investigation into the accused.
65 The Commissioner of Police objects to this witness summons on the following grounds:
1. No legitimate forensic purpose has been identified for which production of the records is sought.
2. The records are subject to a claim of legal professional privilege.
66 This summons relates to briefing notes prepared by police officers as a part of contemporaneous records kept during an investigation. Briefing notes are used to provide information to senior and other officers as to the progress in the investigation.
67 The disclosure of material provided to the defence includes such briefing notes. One would expect that they would normally be relevant. They are akin to police running sheets which are included in disclosed material as a matter of common practice. The production of running sheets was the subject of an order for production in Christie's case.
68 An affidavit of Dianne Patricia Scadden (a barrister and solicitor employed by Western Australia Police) sworn on 12 January 2012 states that the following briefing notes have been identified as possibly falling within the terms of the summons:
1. A briefing note authored by Deputy Commissioner CJ Dawson dated 8 December 2010 entitled 'Arrest of person in relation to murder of Mrs Corryn Rayney';
2. A briefing note authored by Deputy Commissioner CJ Dawson dated 8 December 2010 entitled 'Arrest a person in relation to murder of Mrs Corryn Rayney';
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- 3. Major Incident Briefing Note dated 18 September 2007 authored by Detective Sergeant Carlos Correia;
4. Major Incident Briefing Note dated 19 September 2007 authored by Detective Sergeant Carlos Correia;
5. Major Incident Briefing Note dated 20 September 2007 authored by Detective Sergeant Carlos Correia; and
6. Major Incident Briefing Note dated 20 September 2007 authored by Detective Sergeant Carlos Correia.
69 The Commissioner of Police objects to the production of the briefing notes, firstly on the grounds that no legitimate forensic purpose has been identified. In my opinion briefing notes of the nature described may possibly assist the defence case in a material way, particularly in this trial because the defence is challenging the thoroughness and impartiality of the investigation.
70 The Commissioner of Police also challenges the witness summons to produce briefing notes 4 to 6 described above on the grounds that the documents are subject to legal professional privilege. Separate to the prosecution of Mr Rayney, Mr Rayney has commenced a civil action for defamation against the State of Western Australian arising from comments made by a Detective Senior Sergeant Jack Lee. As a part of these proceedings copies of the briefing notes 4 to 6 described above were taken and produced by Ms Scaddan to the State Solicitor's Office (solicitors for the defendant in the defamation proceedings) for the purposes of giving discovery. Legal professional privilege exists over confidential communications between a legal practitioner and client made for the dominant purpose of the client obtaining, or the legal practitioner giving, legal advice: Esso Australia Resources Ltd v FCT (1999) 201 CLR 49. Notwithstanding that an original record may not be privileged, a copy of the original record will be subject to privilege if it is created for the dominant purpose of seeking legal advice or for preparation or use in contemplated or existing litigation: Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 507 (Brennan CJ), 544 (Gaudron J), (553 - 554) (McHugh J), 571 - 572 (Gummow J), 587 (Kirby J).
71 The objection taken by the Commissioner of Police relates to the copies of the documents taken by Ms Scaddan. However, this misunderstands what is sought to be produced by the witness summons. The copies sought to be produced by the witness summons are not the copies taken by Ms Scaddan but copies of the original briefing notes.
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- These original briefing notes, which were prepared as a part of the investigation into the death of Mrs Corryn Rayney, cannot be the subject of any claim for legal professional privilege on the basis advanced by the applicant.
72 Accordingly, for the above reasons the application of the Commissioner of Police in relation to witness summons number 5 is dismissed.
Summary of conclusions and orders
(a) On witness summons number one:
Item 1 - On the application of the respondent the words 'pertaining to any material served on the accused by way of disclosure' are added after the words 'spreadsheets (in XLS format)' and the witness summons is to be amended accordingly. Otherwise the application of the Commissioner of Police is dismissed in relation to this item.
Item 2 - The application of the Commissioner of Police is upheld and this item of the witness summons is cancelled.
Item 3 - The application of the Commissioner of Police is dismissed.
(b) On witness summons number two:
The application of the Commissioner of Police is adjourned sine die.
(c) On witness summons number three:
Item 1(a) - The words 'Details of' of the item be cancelled. Otherwise the witness summons is discharged by compliance on this item and accordingly the application of the Commissioner of Police is dismissed.
Item 1(b) and (c) - The application of the Commissioner of Police is adjourned sine die.
Item 2 - The application of the Commissioner of Police is upheld and this item of the summons is cancelled.
Item 3 - The application of the Commissioner of Police is adjourned sine die.
(Page 23)
- (d) On witness summons number four:
The witness summons is discharged by compliance and the application by the Commissioner of Police is dismissed.
(e) On witness summons number five:
The application of the Commissioner of Police is dismissed.
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