5 Cases Podcast - Episode 31

I am, and I really want to thank, uh, Eugene Renard and Sheridan Goodwin for bringing this next case to my attention, uh, and acknowledge the work that they did in bringing it before the court.

The case is called RS and Commissioner for Police, and as always, the citations will be in the show notes.

So this is a decision by the Court of Criminal Appeal, uh, in a case where the accused filed a subpoena on the Commissioner of Police, which is something I'm sure most of our listeners will be familiar with, and, uh, we're faced with the police, um, briefing legal representation, uh, in order to s- effectively have the subpoena set aside to defeat the subpoena.

Now, the subject of whether we should be pressing for disclosure or subpoenaing and whether people should be following my stay before subpoena [laughs] mantra, we'll have to deal with in another episode because it's very complicated.

But here we have a nice, neat kind of summary of where, um, in this case, the district court judge went wrong in, um, agreeing with the Commissioner of Police that the subpoena did not have a legitimate forensic purpose.

Now, um, I would encourage, uh, everybody, as we always do, to read the, uh, judgment in its entirety, but I want to pick out some key parts for you so that you can see that this might be a little bit different to the cases that we might have considered before.

So the Court of Criminal Appeal determined that the district court judge, um, fundamentally mischaracterized the applicant's trial case.

The accused, NR, is charged with possession of child abuse material and says he's not responsible for the location of the material.

The accused's son is charged with sexually assaulting a child.

So the accused wished to argue that the documents relating to the charging of his son with assault against the child, um, did have a legitimate forensic, um, purpose in terms of being able to search it and see if there was material there that could assist in his defense.

Because the fact that his son had been charged meant that there was, um, at least some prospect that it could be said that he had a sexual interest in children.

And if he had a sexual interest in children, certainly he provides a pretty rational alternate suspect for who might have possessed the abuse material, the subject of the charges against the accused.

The Court of Criminal Appeal herald that that material that was sought on subpoena had obvious evidentiary value and could well be vital to the defense the applicant sought to pursue at trial.

And that was so whether the test is one of apparent relevance, which is the Blacktown City Council test, or, uh, legitimate forensic purpose together with the need to establish that it's on the cards that the documents will materially assist the case, and that's the test in Saleen.

And it goes back before the district court.

But certainly a legitimate forensic purpose was found in that case, so everybody should have a read of that for when they're having their next argument with whoever the commissioner has decided to brief to, uh, appear for them to resist our, uh, um, subpoenas to get some, uh, material in order to defend accused persons.

Yeah, and one would think that, um, some of the discussion on what is a legitimate forensic purpose in that situation and whether or not it was obvious, uh, once the mischaracterization had been cleared up, um, it's quite an interesting judgment to read, isn't it? In terms of, uh, whilst it doesn't do a deep dive into what LFP is, um, it talks about, you know, the circumstances of when it might be, um, relevant, particularly to this factual scenario which people could apply

applyYeah, I think it's, it's, i- it might be thought to be surprising to people who deal with these cases, and particularly when we're facing tenancy applications, for example, so that topic but in another legislative context, that certainly someone who has an interest in child abuse material, that might be readily thought to give rise to an inference that they have a sexual interest in children, and that might be thought to be relevant to this kind of matter.

The court did also say, um, there's a danger in using the language of tests for the setting aside of subpoena, um, applications, and such terminology, um, should be eschewed.

So that's an area, um, in terms of where the Blacktown City Council applies that people should all be reading.

But anyway, let's move on to the next case.