A recent decision of the NSW Court of Appeal has confirmed that the test for whether a subpoena to produce has a legitimate forensic purpose is whether it is "on the cards" that the production of such documents will assist the applicant.
In Commissioner of Police v Hughes [2009] NSWCA 306, proceedings were commenced by Mr Hughes, a former police officer, against the State of NSW (his employer for the purposes of the proceedings). H e claimed that he had suffered psychological injury by being exposed to horrific incidents and was not given sufficient protection against psychological damage from such exposure.
Mr Hughes had issued a subpoena to the Commissioner of Police requiring him to produce all documents relating to a particular complaint file and all documents referred to in a particular Police Internal Affairs file. The Commissioner sought to set aside the subpoena on two grounds: that it had no legitimate forensic purpose; and that statutory privilege existed over those documents as they were brought into existence for the purposes of assessing, registering and investigating a complaint against a police officer under Part 8A of the Police Act 1900 (NSW) (Act).
Some of the documents were photocopies of documents brought into existence otherwise than for the purposes of Part 8A investigations, but the copies themselves were brought into existence for that purpose. These copies were described as "second generation documents". At first instance, the motion was dismissed and the Commissioner appealed.
The Court of Appeal's judgment, delivered by Young JA, considered whether or not the trial judge erred in finding that there was a legitimate forensic purpose, that the documents copied for Part 8A purposes could not be the subject of statutory privilege and that statutory privilege is limited to cases where there was a formal complaint complying in all respects with s 127 of the Act (which concerns the making of complaints against police officers).
Young JA applied the test set down by Simpson J in R v Salem [1999] NSWCCA 86 at [11] that:
In that regard, the Court held that all that is required is that, if the person subpoenaed challenges the forensic purpose, the onus is on the person issuing the subpoena to demonstrate the legitimate forensic purpose to the judge's satisfaction. That satisfaction is not necessarily the result of an assessment on the balance of probabilities. If an experienced counsel asserts that it is "on the cards" that the material being subpoenaed may well assist in formulating the cross examination, the judge may consider that sufficient. In this case, a legitimate purpose was considered obvious from the pleadings.
The Court also allowed the appeal in relation to the right of the Commissioner to claim privilege over the "second generation documents" as well as the statutory privilege claimed.
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