SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  One infers from his cross-examination that defence counsel in this case came to court reasonably expecting to make substantial inroads into the credit of the central Crown witness.  Counsel achieved his goal, establishing that the complainant was dishonest and untrustworthy, and that he had a substantial prior criminal history for offences of dishonesty committed over many years.

2. Counsel’s expectation was presumably based, at least in large part, on the knowledge that the complainant had previously been convicted of many offences, and been imprisoned – he was serving a term of imprisonment when giving evidence. With a view to enhancing the prospect of effectively challenging the complainant’s credit, the defence subpoenaed records relating to the complainant’s past life.

3. The records were duly produced, in the ordinary way, not to the parties but to the court. Having examined them, the learned trial judge concluded that defence use of them could relate only to the credit of the complainant, and on that basis denied access to the material. The judge appears to have been influenced, also, by the desirability of forestalling undue incursions into otherwise private aspects of the complainant’s personal affairs.

4. The particular issue arising on the appeal is whether the judge should have allowed the defence access to the material, where the defence had made it sufficiently clear it wanted to use the material in that way to seek to diminish or destroy the complainant’s credit, and where it was “on the cards” (cf Alister & Ors v R (1983-4) 154 CLR 404, 414) that the material would be useful for that purpose. 

5. The cases to which Pincus JA refers in his reasons for judgment, especially Saleam (1989) 16  NSWLR 14 and Carter v Hayes (1994) 61 SASR 451, support the conclusion that the judge should have allowed the defence access to the material in those circumstances.

6. Courts are astute to the importance of properly protecting the privacy of a witness’s personal affairs. This material contained details which the judge described as “intimate”, apparently including, for example, accounts of the complainant’s consultations while in custody with medical experts including psychiatrists. But as a matter of principle, that consideration should not in these criminal proceedings have excluded defence access to the material, where it could reasonably have been expected to disclose matters helpful to the legitimate forensic exploration of the credit of the Crown’s central witness.

7. And it did not matter that the contents of the files raising those things may not have been, in form, themselves admissible as evidence. It would have been sufficient that they armed the defence with information it might fairly have pursued with the complainant towards that potentially significant forensic goal, the erosion of his credit.

8. Of course the court would have retained its discretion to stop unhelpful or offensive cross-examination, and that would have encompassed unduly inflammatory or insulting questioning, or questions about matters only remotely relevant: Evidence Act 1977, sections 20, 21.  But the defence should have been allowed the opportunity to equip itself for a possibly even more convincing attack on the complainant’s credit than in fact occurred. 

9. As the matter did transpire, the Crown case was strong and the impairment of the complainant’s credibility withering and effective. But allowing for the very limiting constraints on permissible recourse to the proviso, under s 668E(1)(A) of the Criminal Code (Crofts v R (1996) 186 CLR 427, 441; Glennon v R (1993-4) 179 CLR 1,9,13), there must, if in practical terms regrettably, be a new trial.

10. The last three decades have seen substantial change in the practice of the criminal courts. The modern trend strongly favours early disclosure of the true issues between Crown and defence, rather than their being held back or, worse still, concealed.

11. In the trial of 20 to 30 years ago, the defence would jealously, and sometimes even defiantly, “keep its counsel” as to the accused’s version of the events. That may have been explained partly by the Crown’s own approach. Under that regime, the Crown for its part was entitled to hold back witnesses’ statements, and other potential evidence (cf O'Shea v Bandiera ex parte O'Shea [1968] QWN 43 at 98) – save what the defence had been able to unearth at the committal hearing, which often in that context developed into a protracted “fishing expedition”.  This sort of approach undoubtedly produced what would now be regarded as many unnecessary trials, and sometimes the entry of pleas very late during trials, with consequent wastage of public and private resources, together with unfortunate delays to the administration of the criminal justice system.

12. The modern approach appropriately encourages candid early disclosure on both sides. The Crown is obliged to disclose in advance its statements and other potentially relevant evidence to the defence (see Director of Public Prosecutions’ Guidelines to Prosecutors, reproduced in Carter’s Criminal Law of Queensland, vol 2, paras 145, 501.10 and 145, 501.45, and as to earlier times, cf Lawless v R (1978-9) 142 CLR 659, 678).  The defence is encouraged, although – with limited exceptions - not obliged, to “show its hand” as early as possible.  Defence admissions are much more frequently made these days, and early during trials defence counsel will not unusually delineate for the jury the issues essentially in contention.

13. These are obviously desirable, enlightened developments: helpful to the administration of justice, by encouraging the early entry of honest pleas of guilty, and streamlining necessary trials, avoiding the wasting of time and other resources; and also helpful to the parties, both in preserving resources, minimising jury frustration, and assuring to accused persons who plead guilty, appropriate reduction in penalty.

14. Consistently with this more open approach, it would be oddly regressive if, in the contemporary criminal court, a trial judge were to deny the defence access to material which may well help erode or destroy an important Crown witness’s credit; or to say (although this was not said here) “you have enough already – I will not let you equip yourselves to take any further step along this route”.

15. Just as the criminal court is increasingly interested in the early disclosure of evidence, and providing preliminary procedural type rulings, all directed towards identifying at an early stage appropriate cases for pleas of guilty, and streamlining the conduct of any necessary trials, so in a case like this, the issues concerning these subpoenas should, in the interests of efficiency, have been raised with the learned judge for consideration prior to the trial. That could have been done by application under s 592A Criminal Code, or rule 29 Criminal Practice Rules.   Other matters apart, doing so would have avoided wasting the time of the jurors at the trial.  The substantial personal commitment of jurors must be valued and respected and never taken for granted, whether by the court or the parties’ legal representatives .

16. I agree with the orders proposed by Pincus JA, and with His Honour’s reasons.

17. PINCUS JA:  The appellant was convicted of the offence of unlawfully doing grievous bodily harm;  the Crown case was that he had stabbed the complainant in the upper abdomen.  The appellant, on the other hand, contended that in response to an apparent threat he held a knife out in front of him, but did not stab the complainant;  the implication was that the complainant impaled himself on the knife.

18. There was much in the evidence which reflected on the complainant's credit. The judge pointed out to the jury that the complainant had "lived as a thief for portions of his life" and that "he accepted he was dishonest, untrustworthy, unreliable, not dependable, not reasonable".

19. At the trial, then counsel for the appellant tried to gain access to some documents which had been subpoenaed, but failed to do so; this is the sole basis on which the verdict is challenged. The question in the case is: what are the principles to be followed when the defence requests access to subpoenaed documents, in a criminal trial?

20. Before evidence was called defence counsel applied to the judge for leave to look at subpoenaed material from a number of sources. The judge said in effect, as I understand his Honour's ruling, that he was not prepared to allow access to documents subpoenaed from the Education Department, from the Director-General of Family Services or from the Department of Corrective Services. He was prepared to allow access to what were described as "the police briefs". Subsequently, his Honour gave a further ruling with respect to documents produced in response to a subpoena issued to the Department of Corrective Services. That subpoena required production of:

"All and any documents filed, paper notes, notes or records regarding [the complainant] which may be in your possession custody and power". 

21. The judge explained that he had attempted to read the documents produced and said:

"I am satisfied the information in the document produced is irrelevant to the proof or disproof of the charge, except in so far as any information could be used to embarrass or discredit the complainant further".

His Honour went on to explain that there was "information relating to intimate personal issues" in the documents and made reference to s 61 of the Corrective Services (Administration) Act 1988;  its effect is, so far as relevant, to prohibit the provision to any person of such documents as were sought by the defence here, other than by order of a court or judge.  The judge said that there had been an objection to production of some of the Corrective Services documents;  the validity of that objection was not, it appears, challenged.  His Honour did not set aside the Corrective Services subpoena but said:

"There is no relevant and admissible document in the material.  The material generally contains information and reports on the complainant, none of which as far as I can see, is relevant to the proof or disproof of the charge.

The information could, of course, be used to embarrass the complainant and could be used in an attempt to discredit him.  Some of the material may therefore have the potential to be used to attack his credit".

The judge refused permission to inspect the material.

22. Although there is now much authority on the question of the right of the defence to inspect documents in criminal cases I have found no appellate decision in this State relating even indirectly to that subject except O'Shea v Bandiera, ex parte O'Shea (1968) QWN 43.  There the Full Court held that a magistrate should have refused a request that the defence be supplied with copies of the statements of Crown witnesses.  The practice of the criminal courts is not now reconcilable with that decision.  I have also noted that in the United Kingdom a restrictive view of defence rights to obtain documents by subpoena, in criminal cases, has been taken:  R v Derby Magistrates Court, ex parte B [1996] 1 AC 487;  that case is not consistent with Australian authority.

23. When documents are subpoenaed a series of questions may arise, in a criminal or indeed a civil case. In order they are –

1. Whether the subpoena is invalid, for example because it is too wide.  In Alister (1984) 154 CLR 404, a case about public interest privilege, the subpoena in question sought from ASIO "all files, notes and memoranda relating to or supplied by" an identified investigation over an identified period.  The width of the subpoena was not the subject of adverse comment, except by Gibbs CJ (416).  The Full Court of the Federal Court in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 approved a subpoena which identified documents by reference to their relevance to specific issues.  More generally, it does not appear that a court will readily set aside a rather wide subpoena unless it appears to be of an oppressive character.

2. If there is an objection to produce documents on the ground of privilege, whether that objection should be given effect to.  Alister is an example;  in that case it was held that the court could inspect the documents in order to decide the validity of the claim of privilege.

3. Whether the parties should be permitted to inspect the subpoenaed documents.  That is the issue in this case.

4. What use should be allowed to be made of the documents subpoenaed, or of the information contained in them.  If the documents are sought to be used for the purpose of cross-examination, there are of course statutory restraints such as those in ss 20 and 21 of the Evidence Act 1977.

24. The Rule

It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed.  The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit.  Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused.

25. The Authorities

The most important decisions are Alister, just referred to, and two New South Wales cases:  Maddison v Goldrick [1976] 1 NSWLR 651 and Saleam (1989) 16 NSWLR 14.  The approach worked out in the latter two has been accepted in some other jurisdictions.

26. Samuels JA (as His Excellency then was) wrote a judgment in Maddison v Goldrick, which was concurred in by Street CJ and Moffitt P.  There, in a criminal case, it was held to have been proper for the magistrate to require the police brief, by which was meant the Crown witnesses' statements, to be produced to the defence.  Under the statute on which the magistrate relied to make the order, it was necessary that the documents be required "for the purposes of evidence".  Samuels JA observed:

"But documents sought to be used for the purpose of cross-examination are required 'for the purposes of evidence', and the criterion by which this requirement of s 26 is to be judged is not whether the documents called for would then have been admissible as part of the case of the party making the call". (663-664)

His Honour went on to explain that the statements were not the subject of legal professional privilege.

27. In Saleam a subpoena was issued in a criminal appeal;  the appellant sought:

"... the production of every document relating to the investigation and prosecution of the offences with which the appellant and a co‑accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at the trial". (16)

Since the Commissioner of Police had produced the documents, an objection which was made that the subpoena was excessively wide was held to be too late (17).  Hunt J referred to what his Honour described as "the currently fashionable ploy of achieving, in effect, a one-sided (and impermissible) discovery against the police by having a call made upon such a subpoena shortly before the trial" (17).  The reasons went on to hold that counsel in such a case should be required "to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents ... Sometimes that purpose will not become apparent ... until the trial has been under way for some time ... and the judge's initial refusal to permit inspection should always be open to review".

28. Adopting an expression used in Alister at p 414, Hunt J concluded –

"... that it was at least 'on the cards' that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents at this stage, despite the absence at present of any ground of appeal to which that could be relevant". (21)

The judge also said:

"The circumstance that a document is inadmissible in evidence in any particular proceedings does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes ...".  (22)

29. Since these cases were decided, other Australian decisions have relied upon them. In Carter v Hayes (1994) 61 SASR 451, the question was whether a magistrate should have made an order for production of certain documents required by the defence, consisting principally in statements taken by police.  The magistrate's power was confined to documents "of evidentiary value".  King CJ discussed the various items required and remarked:

"The remaining items relate to statements made by necessary or likely witnesses and are therefore proper subjects of a subpoena duces tecum ...  A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not so admissible of itself, because it provides material of value for cross‑examination ... or discloses 'information which may be established in some other admissible form'". (453)

Dealing with the objection that the application was merely "fishing", King CJ said:

"A party's lack of knowledge of the existence or contents of the material sought is not of itself, however, a valid objection to a subpoena ... Alister v The Queen (1984) 154 CLR 404 is an instance of a valid subpoena for the production of documents the existence of which was not known to the accused with any specificity ... The documents sought to be produced by the present subpoena must, by their nature, have a bearing on the issues in the case and may well have evidentiary value". (453)

The other members of the court agreed with the Chief Justice.

30. I note that apart from the cases already referred to, authority for the view that documents for use in cross-examination may properly be subpoenaed is supplied by in re Emma Silver Mining Co [1875] LR 10 Ch App 194 at 197 and Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, referred to above.

31. I have mentioned that the expression "on the cards", used with reference to an application for inspection, came from Alister;  that was in a passage reading as follows:

"Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial ..., so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings.  Although a mere 'fishing' expedition can never allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence". (414)

Although these observations of Gibbs CJ had to do with a case in which the issue was privilege or no, the "on the cards" test has been used in considering whether subpoenaed documents not subject to privilege should be allowed to be inspected.  Examples are Falconer v Kenworthy [1998] WASC 68, CIV 2409 of 1997, 12 March 1998, Sergi [1998] 1 Qd R 536 at 538 (per Lee J), and Saleam [1999] NSWCCA 86, No 60719 of 1997, 24 April 1999, at par 11.

32. Approach in Criminal Cases

There is authority, already cited, in favour of the view that special weight must be attached to the fact that the documents may support the defence in criminal proceedings.  Gibbs ACJ had made similar remarks in Sankey v Whitlam (1978) 142 CLR 1:

"If state papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the defence of an accused person whose liberty was at stake in a criminal trial ...". (42)

In the same case Stephen J quoted the following with approval:

"The public interest that no innocent man should be convicted of  crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial". (62)

Further, in Alister, Brennan J remarked:

"In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court.  The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law". (456)

I have also noted that the New South Wales Court of Criminal Appeal suggested in Alexandroaia (unreported, NSWCCA No 60353 of 1995, 7 July 1995) that the requirement that the party desiring inspection of a subpoenaed document "identify expressly and with some precision the legitimate forensic purpose for which access is sought" is in a criminal case approached liberally.  One would expect that to be so, for on occasions the subpoenaed documents may be such that the defence should be allowed to inspect them, even though the precise use likely to be made of them when the contents are discovered cannot be predicted.

33. Result

It seems clear that the learned primary judge, who does not appear to have had the advantage of reference to all the relevant authorities, decided the application for inspection on the basis that it was for him to be satisfied, before allowing inspection, that the subpoenaed documents were relevant to proof or disproof of the charge and not merely with respect to credit.  In my respectful opinion, in proceeding on that basis his Honour erred.  Use of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose.  It is also important to notice that the judge made the decision, by inspecting the documents himself, that they were not useful for the purpose of the defence.

34. In my opinion the proper practice would have been first to determine whether there was a legitimate forensic purpose in requiring inspection and then, if there was such a purpose, to let them be inspected by counsel. It was held in Saleam that:

"If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence.  Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents". (18)

This passage appears to set out a procedure which should be followed.  Experience, particularly in civil cases, suggests that where documents are properly subpoenaed it is not the function of the judge or magistrate to go through them and select those which he or she thinks are relevant.

35. This Court has to decide whether the defence should have been allowed access to the documents. In my opinion the answer must be yes. All of the documents were of such a character as to be likely to contain information about the principal Crown witness, which might have been of use in cross-examination of him. Of course, it could have turned out that no information would have been gained, from inspection of the documents, of any substantial value to the defence; but it was for counsel for the defence, not the judge, to determine that. One disadvantage of taking the course which should have been followed is that inspection of documents by counsel can lead to some delay. I note that the Criminal Practice Rules 1999 allow subpoenas duces tecum to be made returnable before trial – see Ch 8, rr 29-35.

36. Proviso

In Alister, Brennan J (as his Honour then was) remarked at 451:

"The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries.  It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law.  There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum ...".

It was argued on behalf of the Crown, in this Court, that –

"... counsel for the appellant at trial was unable to particularise any matter which may have been contained within the Corrective Services Commission material under subpoena, which he relied upon as going to any particular issue of credit".

That is hardly surprising, since counsel had seen none of the documents.  It was also argued, in effect, that counsel had plenty of information, already, on which to cross-examine the complainant as to credit;  the complainant had a criminal history, a psychiatric history and was a drug user.  In my respectful opinion, the circumstance that other material before the Court might make the jury doubt the complainant's credibility cannot be a good reason for refusing the defence access to documents which might well add further strength to the attack on that witness.

37. The real difficulty in acceding to the argument that the verdict should be set aside is that there is absolutely no reason to doubt that the appellant's knife pierced the complainant's abdomen, causing grievous bodily harm, and the appellant's evidence about the way in which this happened is implausible. Nevertheless, it seems to me impossible to conclude that access to and cross-examination on the subpoenaed documents could not have made a difference to the verdict.

38. I would allow the appeal, set aside the conviction and order a new trial.

39. WHITE J:  I have had the advantage of reading the reasons for judgment of both the Chief Justice and Pincus JA and there is nothing more that I can usefully add to their discussion of the principal question in the appeal concerning the principles to govern a defence request to access documents subpoenaed in a criminal trial.

40. I agree with their Honours’ analysis of the law on that issue and the conclusion to which they have come that there must, regrettably, be a new trial.

41. I would also wish to associate myself with the Chief Justice’s observations that a request to inspect subpoenaed documents by the defence ought to occur before the trial proper commences taking advantage of the beneficial provisions of s 592A of the Criminal Code or Rule 29 of the Criminal Practice Rules.  This, of course, requires that the defence have the subpoena issued in sufficient time for the documents to be collated and any claim to privilege to be raised well before the trial.