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  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). He 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
Young JA applied the test set down by Simpson J in R v
Salem  NSWCCA 86 at  that:
"before access is
granted...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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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