R v Warren Keith Nicholl and Peter Richard Dowling; Ex Parte Robert Leo Lehmann [1989] ACTSC 16 (21 April 1989)

SUPREME COURT OF THE ACT

THE QUEEN v. WARREN KEITH NICHOLL and PETER RICHARD DOWLING; EX PARTE
ROBERT LEO LEHMANN
S.C. No. 210 of 1989
Prerogative Writs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Prerogative Writs - certiorari and prohibition - summons for production of police records addressed to the Commissioner of Police - whether summons too wide and an abuse of process - role of a Magistrate in committal proceedings in respect of the summons process and inspection of the documents referred to therein - relevant principles

In Re Smith William v. Frere (1891) 1 Ch 323

R. v. Greenaway 7 QB 126

Rochfort v. Trade Practices Commission [1982] HCA 66; (1983-84) 153 CLR 134

The Commissioner for Railways v. Small (1938) 38 SR(NSW) 573

Cheng Kui v. Quinn and Ors (1986) 67 ALR 231

Barton v. The Queen [1980] HCA 48; 147 CLR 75

Maddison and Anor v. Goldrick and Anor (1976) 1 NSWLR 651

Waind v. Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372

Spencer Motors Pty Ltd v. NLC Industries Ltd (1982) 2 NSWLR 921

Alister and Ors v. The Queen [1983] HCA 45; (1983-84) 154 CLR 404

Air Canada and Ors v. Secretary of State for Trade (1983) 2 AC 394

Burmah Oil Co. Ltd v. Governor and Companay of the Bank of England and Anor [1979] UKHL 4; (1980) AC 1090

Attorney-General for New South Wales v. Findlay (1976) 9 ALR 521

HEARING

CANBERRA
21:4:1989

ORDER

The order nisi be discharged.

DECISION

On 12 April 1989 the prosecutor applied as a matter of urgency for an order nisi against the first respondent and the second respondent for certiorari to bring up the record of the Magistrates Court in relation to the issue of a subpoena served upon the Commissioner of Police of the Australian Federal Police, Canberra, and for prohibition in relation to the release for inspection by the second respondent of the documents referred to in paragraph 2 of the subpoena.

2. The application was supported by evidence on affidavit by Milon Craig Chowdhury, solicitor employed in the Office of the Director of Public Prosecution, Canberra, who was appearing to instruct counsel in committal proceedings against the second respondent before the first respondent on a charge of murder.

3. I granted an order nisi for certiorari and prohibition, gave certain directions in respect of service of sealed copies of the order and the supporting affidavit upon the first respondent and upon the second respondent and adjourned the further hearing of the matter until 13 April 1989. On that day counsel for the first respondent appeared to submit to any order which the court might make. For easier understanding I shall refer to the first respondent as the Magistrate. Counsel also appeared for the second respondent and applied to have the order nisi discharged.

4. The committal proceedings on the charge of murder against the second respondent commenced in the Magistrates Court, Canberra, on Tuesday, 4 April 1989. Prior to the commencement of those committal proceedings the legal representatives for the second respondent had been served with copies of statements of all witnesses to be called on behalf of the informant and copies of all photographs which the informant proposed to tender at the committal. After the commencement of the committal proceedings the second respondent caused to be served upon the Commissioner of Police of the Australian Federal Police, Canberra, a summons to produce the documents set out therein, namely:
"1. All statements made to police by persons claiming

to have seen Bente Mossessen on or about 25 March
1988 other than the statements of Catherine Joan
Isabella Bennets, Raelene May Biles, Amanda Jane
Warner, Peter Katsibiris, Lawrence John Black,
Johanna May Bailey, Melissa Jane Wainwright, Adam
Thomas Wright, Laurence Arthur Woods, Ronald Eric
Heidke and Peter John Hunt.
2. All occurrence sheets and investigation reports
and police statements and running sheets and other
records with respect to the investigation of the
disappearance and death of Bente Mossessen other
than the statements of Catherine Joan Isabella
Bennets, Raelene May Biles, Amanda Jane Warner,
Peter Katsibiris, Lawrence John Black, Johanna May
Bailey, Melissa Jane Wainwright, Adam Thomas James
Wright, Laurence Arthur Woods, Ronald Eric Heidke,
Peter John Hunt, Kathleen Elizabeth Battersby,
Michael John Scrivner, Brett Kenneth Pike, Phillip
Leslie Whittaker, Debra Elizabeth Moore, Matthew
John Boucher, Stephen Sydney Welch, Juha Oravala,
Timothy James Mugridge, Garry Maxwell Mugridge,
Harry Bruegelmans, Debbie Tony Tinsley, Frank
Robertson Pound, Dr Thomas Howard Godfrey Oettle,
John Harold Goulding and Paul Leslie Reedy."

It is that summons which is the subject of the application.

5. During the course of the committal proceedings the informant, through his counsel, objected to the production of the documents set out in paragraph 2 above. After hearing submissions on behalf of the informant, who is the prosecutor herein, and on behalf of the second respondent, the Magistrate made an order that the documents referred to in paragraph 2 above be produced. No transcript of the proceedings before the Magistrate is available, but it appears from the affidavit of Mr Chowdhury that similar submissions to those made on behalf of the prosecutor on the return of the order nisi were made in the Magistrates Court. I shall deal with those submissions later in these reasons.

6. The Magistrate ruled that the summons was properly issued by a Clerk of the Magistrates Court, that s.66 of the Magistrates Court Ordinance did not take up time limits referred to in the Supreme Court Rules for the production of documents, and even if it did, he had the power to abridge that time. Further he held that the summons in the terms of the second paragraph was not too wide and that the second respondent had a legitimate forensic purpose. Pursuant to the order all documents referred to in the summons were produced by 2.00 pm on 12 April 1989.

7. The evidence before me establishes that 10 boxes of material were produced. The nature of the contents of those boxes was set out in a document tendered in evidence before me (Exhibit 1). At the present stage of the committal proceedings no application has been made on behalf of the second respondent for inspection of any of the documents produced. Counsel for the second respondent has indicated that in due course in the committal proceedings he does propose to seek an order that the documents be made available to the second respondent for inspection. On behalf of the prosecutor three submissions were advanced in support of the application for the prerogative writs of certiorari and prohibition. First, it was submitted that the summons was issued pursuant to s.66 of the Magistrates Court Ordinance, which reads:

"66. Where a Magistrate has authority to summon
any person as a witness, he shall have the like
authority to require and compel him to bring and
produce, for the purposes of evidence, all documents
and writings in his possession or power, and to proceed
against him, in case of neglect or refusal so to do, in
the same manner as in case of neglect or refusal to
attend or refusal to be examined:
Provided that a person shall not be bound to
produce any document or writing not specified or
otherwise sufficiently described in the summons, or
which he would not be bound to produce upon a subpoena
duces tecum in the Supreme Court."

It was submitted that because of the operation of O.39, r.26 of the Supreme Court Rules, a person would not be bound to produce upon a subpoena duces tecum in the Supreme Court any document specified in the summons because a period of 14 days would not expire between the service of the summons and the return date for production. I rejected that submission because I was of the opinion that the proviso in s.66 was not directed to the time limits provided for by O.39, r.26 but rather to the class of documents which a person would be bound to produce upon a subpoena duces tecum in the Supreme Court.

8. Secondly, it was submitted on behalf of the prosecutor that s.66 of the Magistrates Court Ordinance appears in "Part V - Hearing", "Division 2 - Evidence" and that the scheme of Part V is for the Magistrate actually hearing a particular proceeding to issue the summons to compel the production of the documents. The submission was that, as the subject summons was not issued by the Magistrate, it was invalid as not being authorised by s.66. Likewise I rejected that submission, as I did not accept the premise upon which the submission was based.

9. Thirdly, it was submitted on behalf of the prosecutor that the summons was an abuse of process because by its terms it was too wide and, in any event, inspection of the documents produced pursuant to the Magistrates Court's order should not be permitted because no legitimate forensic purpose had been shown by the second respondent.

10. In answer to that third submission, it was submitted on behalf of the second respondent that, being accused of murder and being subjected to committal proceedings, he is entitled to know and have made available to him all the evidence available to the informant whether favourable to the second respondent or not. Counsel argued that as a matter of fairness an accused person is entitled to know all the evidence available to the informant, not merely the evidence which suits the informant's case on the charge brought by the informant. Counsel stated that he could not cite any authority for that proposition.

11. It is to be noted that the summons was directed to the Commissioner of Police of the Australian Federal Police, Canberra. The Commissioner of Police is, of course, technically a stranger to proceedings instituted by an informant against another person. However, the prosecutor, as informant in the Magistrates Court, should be presumed to have instituted the proceedings against the second respondent in his role as a member of the Australian Federal Police and, accordingly,the Commissioner of Police of the Australian Federal Police has a real interest in those proceedings.

12. For present purposes the Commissioner of Police and the prosecutor should be regarded as having one and the same interest. It is to be noted that the submissions in support of the application on behalf of the prosecutor for the issue of the prerogative writs were made by counsel for the prosecutor. There was no appearance by or on behalf of the Commissioner of Police as the addressee of the summons either in the committal proceedings or on the return of the order nisi in this court. It is also to be noted that it was not contended on behalf of the prosecutor that the summons was oppressive, nor was any claim of legal professional privilege or public interest immunity made. The sole ground advanced on behalf of the prosecutor in respect of the validity of the summons was that in its terms it was too wide.

13. I am prepared to assume that the Commissioner of Police would not voluntarily appear and produce for the purposes of evidence the documents and writings referred to in paragraph 2 of the summons. In those circumstances, the issue of the summons was appropriate having regard to the terms of ss.61 and 66 of the Magistrates Court Ordinance. I have already set out above the terms of s.66. Section 61 reads:

"61. If it is made to appear to a Magistrate that
any person is likely to give material evidence, and
will not voluntarily appear for the purpose of being
examined as a witness at the hearing of any
information, the Magistrate shall issue his summons to
that person, requiring him to be and appear at a time
and place mentioned in the summons before the Court, to
testify what he knows concerning the matter of the
information."

14. The Magistrate clearly had authority to summon the Commissioner of Police as a witness and likewise had authority to require and compel him to bring and produce for the purposes of evidence the documents referred to in the summons, unless the terms of the summons were too wide. The Commissioner of Police could give material evidence in the sense that he could produce the documents which were either in his notional possession or actual control. The documents were produced to the Magistrate over the objection of the informant by the exigencies of the summons process. In due course the Magistrate will have to exercise his discretion whether or not to make the material available to the second respondent.

15. A subpoena duces tecum is a writ which is issued by the court as of course upon application by or on behalf of a party commanding the addressee to attend before the court to give evidence and also to search for, bring and produce to the court some document or documents relating to the proceeding in which the subpoena, in this case a summons, was issued. It is a writ of suboena ad testificandum with an addendum directing the production of documents. If a subpoena duces tecum is issued in an objectionable form, the addressee may apply to the court to have it set aside. If duly served with a writ and provided with the proper conduct money, the person served must obey it and bring to the court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive; and he must produce to the court the documents which he has brought unless he satisfies the court that some good reason exists why they should not be produced (In Re Smith William v. Frere (1891) 1 Ch 323 at 332; R. v. Greenaway 7 QB 126 at 135; Rochfort v. Trade Practices Commission [1982] HCA 66; (1983-84) 153 CLR 134 at 143 and 149).

16. If the witness produces the documents he produces them to the court and not to the parties. He may if he chooses state that he objects to their being handed to the parties for inspection (The Commissioner for Railways v. Small (1938) 38 SR(NSW) 573).

17. In considering whether the Magistrate was correct in making the order that the documents referred to in paragraph 2 of the summons be produced, it is relevant to bear in mind the policy and scope of the provisions of the Magistrates Court Ordinance in relation to committal proceedings. What was said by Fox J. in Cheng Kui v. Quinn and Ors (1986) 67 ALR 231 at 233 in relation to the Justices Act 1902 (NSW) is fully applicable to the scope and policy of the Magistrates Court Ordinance. He said that the policy is to emphasise the importance of committal proceedings and to give defendants full opportunity by cross-examination of prosecution witnesses, objections to evidence, the giving of evidence, by addresses and by other proper forensic means, to avoid committal or to test the case against them before trial. Committal proceedings constitute an important element in the protection of the accused (Barton v. The Queen [1980] HCA 48; 147 CLR 75 at 100).

18. Bearing in mind the scope and policy of the legislation in committal proceedings, it does not follow that a person charged with an indictable offence has the right to have access to all documents which might fall within the description of the "police brief". So much is made clear in the judgment of Samuels JA in Maddison and Anor v. Goldrick and Anor (1976) 1 NSWLR 651 at 651 at 658. In that case in the course of committal proceedings on a charge of murder, counsel for the accused, before the witnesses had been called, sought an order under s.12 of the Evidence Act 1898 that the police brief be produced to the court. After argument the magistrate made the order sought and permitted counsel for the accused to have access to the brief. It is apparent that counsel for the accused was not seeking to have all the documents falling within the description of the police brief produced. What he was after were the statements of those whom the police had interviewed and whom the prosecutor proposed to call at the preliminary examination.

19. Having explained that that was the scope of the call, Samuels JA then said at p 658:

"I should, therefore, make it plain that nothing which I
am about to say is to be taken as any warrant for the
proposition that counsel for a defendant at committal
proceedings is entitled by any means to obtain access
to every document which the police prosecutor has in
his possession for the purpose of conducting the
proceedings."

20. Samuels JA made it clear that he proposed to confine himself to the question whether the magistrate fell into error of law in directing the statements of witnesses who were intended to be called to be produced to counsel for the defendant. His Honour went on to hold that the magistrate had not made any such error.

21. The scope of the subpoena process and the nature of the discretion to permit inspection was dealt with in some detail by Moffit P. in Waind v. Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372. His Honour said that there are really three steps in the subpoena process. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena or to the production of the documents to the court pursuant to the subpoena.

22. The second step is the decision of the judge concerning the preliminary use of the documents which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part or the use of it in the process of evidence being put before the court by cross-examination or otherwise.

23. His Honour said that upon the first step the addressee of the subpoena may seek to have the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. His Honour then went on to consider various hypothetical situations such as the use of a subpoena for the purpose of discovery and an improper use if the subpoena were not sought for the purpose of litigation but for some spurious purpose (see pp 381-382).

24. Moffit P. then went on to explore the exercise of the discretion to permit inspection of the documents produced to the court. He observed that at this point documents are in the control of the court pursuant to the valid order of the subpoena. His views may be summarised by saying that inspection should be granted so far as is necessary in the proper conduct of the litigation and this means where it is reasonably likely to add in the end, in some way or other, to the relevant evidence in the case. In Spencer Motors Pty Ltd v. NLC Industries Ltd (1982) 2 NSWLR 921 at 927, Waddell J. adopted this test to the question whether the subpoena itself is oppressive or an abuse of process. I respectfully agree with that approach.

25. The question of the scope of the subpoena process squarely arose in Alister and Ors v. The Queen [1983] HCA 45; (1983-84) 154 CLR 404. This was a case involving the trial of three men for conspiracy to murder and two for attempted murder. A subpoena duces tecum was issued on behalf of the accused directed to the Officer-in-Charge, Australian Security Intelligence Organisation ("ASIO") requiring him to produce all files, notes and memoranda relating to or supplied by the investigation by one Seary into the Ananda Marga organisation and its activities from 15 June 1977 to the date of the subpoena. The Attorney-General for the Commonwealth swore an affidavit stating that to disclose whether or not documents meeting the description in the subpoena existed would be prejudicial to security on a number of grounds.

26. It was held by Gibbs CJ, Murphy and Brennan JJ, Wilson and Dawson JJ dissenting, that the judge had erred in refusing to require the production of the documents that may have answered the description in the subpoena to enable the court to discover whether any such documents existed and then to inspect them for the purpose of deciding whether they should have been disclosed to the accused.

27. Gibbs CJ held that the subpoena was too wide and said that he could see no reason to inspect all documents P N that may relate to any investigations made by Seary into Ananda Marga. He said that the court should inspect all documents that relate to any investigation by Seary into the alleged crimes of which the applicants were convicted or into the activities of the applicants, and the Attorney-General should be given an opportunity to raise any further objection that may be necessary in relation to any particular documents.

28. Murphy J., at p 431, agreed with Gibbs CJ that the trial judge should have inspected the documents subpoenaed to ascertain if they contained anything which tended to show that the case against the accused was fabricated or otherwise tended to assist the accused in their defence, either directly, for example by providing a basis for cross-examination, or indirectly, by pointing to the existence of other material which might assist. He said there is a public interest in the proper administration of criminal justice and that the process of criminal justice should not be distorted to prevent an accused from defending himself or herself properly.

29. In his judgment, Brennan J. traced the history of the accused's right to avail himself of the subpoena process at p 450-451:

"The right of an accused person to compulsory
process to secure the attendance of witnesses is a
right of some antiquity. The eighth edition of
Hawkins' Pleas of the Crown (Curwood ed.) Book 2, Ch 46
states the law:
'Sect. 165. I take it, that in prosecutions for
misdemeanors the defendant may take out subpoenas
of course; but that in capital cases he hath no
right, by the common law, to any process against
his witnesses without a special order of the court
...'
'Sect. 167. And it seems, that since the statute
of 1 Ann. c. 9. ... which ordains, "That the
witnesses for the prisoner shall be sworn,"
process may be taken out against them of course in
any case whatsoever.'
The learned editor adds a footnote that -
'The compulsory process to bring in witnesses in
criminal causes is either by subpoena issued in
the King's name by the justices where the plea of
not guilty is to be tried; or the justices or
coroner who take the examination of the person
accused, and the information of the witnesses, may
at that time (and this is the usual way), or at
any time after, and before the trial, bind over
the witnesses to appear at the sessions, and if
they refuse to be bound over, may commit them for
contempt ...'
The struggle for the right of an accused person to
compulsory process to secure the attendance of
witnesses is sketched by Blackstone in his Commentaries
(8th ed., Book IV, pp 359-360), culminating in the
passing of the statutes of 1695 and 1702 (7 Wm III c. 3
and 1 Anne (2) c.9) which permitted the right
theretofore enjoyed by persons accused of
misdemeanours, namely, the right to compel witnesses to
attend and to be sworn, to be enjoyed thereafter by any
person accused of treason or felony. In the American
Colonies, the right of 'all Criminals' to the same
privileges as prosecutors in the securing of witnesses
was first recognized by the Pennsylvania Charter of
Privileges in 1701 and came to be enshrined in the
Sixth Amendment to the Constitution of the United
States. 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
see Amey v. Long (1808) 9 East 473, at pp 484-485 (103
ER 653, at p 658). Lawrence J. is there reported to
have said during argument (1808) 9 East, at p 481 (103
ER, at pp 656-657) that 'he could not reconcile it to
his mind to suppose, that the innocence of a person
accused might depend on the production of a certain
document in the possession of another, who had no
interest in withholding it, and yet that there should
be no process in the country which could compel him to
produce it in evidence'. Of course, the applicants did
not know and do not know now whether ASIO have
possession of any document admissible in aid of the
defence case. But the right to compulsory process
cannot be dependent upon the party's ability to prove
the existence and content of a document when the party
has reasonable grounds to believe that a document
exists and seeks to obtain it by subpoena. That would
eviscerate the right and limit its enforcement to
occasions when the party already has in his possession
secondary evidence of the original document the
production of which the subpoena is intended to
secure."

30. Brennan J. went on to say that if the applicants were entitled by subpoena to compel ASIO to produce to the court documents answering the description in the subpoena it could not be said that their trial was according to law. He said that the trial judge had denied the applicants the benefit of the subpoena in setting the subpoena aside, and if he did so upon erroneous grounds, the applicants' trial was not according to law.

31. Brennan J. examined the court's role to see whether a subpoena has been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the defence case. He referred to Air Canada and Ors v. Secretary of State for Trade (1983) 2 AC 394 where it was accepted that the court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce's criterion, there were "some concrete ground for belief which takes the case beyond a mere 'fishing expedition'; some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery". Brennan J. said that the obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court.

32. Later he said:

"The power of a criminal court to compel the
production of government documents on the application
of an accused person is a safeguard of individual
liberty, but the power must be carefully used. The
gravity of the charge, the nature of the issues, the
evidence in the case and the terms of the affidavit
claiming public interest immunity are relevant factors
for the court to consider in deciding whether to
inspect the documents."

33. Brennan J. agreed with Gibbs CJ and Murphy J that the trial judge in Alister and Ors v. The Queen ought to have inspected the documents sought by the subpoena (if any documents existed) to ascertain whether one or more documents showed the alleged fabrication and frame-up.

34. The minority judgment was delivered by Wilson and Dawson JJ in a joint judgment. Their Honours referred to Burmah Oil Co. Ltd v. Governor and Company of the Bank of England and Anor [1979] UKHL 4; (1980) AC 1090 where Lord Edmund-Davies postulated the test of a likelihood that the class of documents contained material substantially useful to the party seeking discovery, regarding that qualification as necessary in order that "what is no more than a 'fishing expedition' ought not to be advanced by the judge's having a peep to see whether they contain an attractive catch". Their Honours went on to say that it may be contended that in a serious criminal case a court should apply a lower standard where an accused person seeks the production of documents for which immunity is claimed, at least in deciding whether to inspect the documents for itself. Their Honours doubted whether a satisfactory criterion could be found which fell between the requirement that a likelihood be shown and mere hopeful anticipation. Their Honours said that fishing expeditions ought not to be encouraged. Accordingly they were not persuaded that the trial judge had erred when he declined to require ASIO to disclose the existence or otherwise of documents the subject of the subpoena or to produce for his inspection such of the documents as did exist.

35. Pursuant to the view of the majority in Alister and Ors v. The Queen the court proceeded to inspect the material furnished by ASIO in response to the subpoena and in response to the High Court's direction. A majority of the court were of the view that none of the documents was relevant to the issues at the trial or could have been used for the purposes of cross-examining the Crown witnesses.

36. The principle which I deduce from Alister and Ors v. The Queen is that where documents have been subpoenaed and the subpoena is not otherwise liable to be set aside as not being in proper form or as being oppressive, the subpoena may still be set aside as being too wide and an abuse of process. In order to determine whether a subpoena is too wide and an abuse of process, it is appropriate for a court to inspect the documents produced to see whether the process itself was legitimately put in train or whether it was invoked in the hope of catching something in the net of the subpoena process. The gravity of the charge, the nature of the issues, the evidence in the case, and the claims touching upon the width of the subpoena are relevant factors for the court to consider.

37. It follows, in my view, that the Magistrate was correct in ordering compliance with the summons served upon the Commissioner of Police.

38. The next step which the Magistrate should follow is to inspect the documents himself in order to determine the question whether the subpoena is too wide and an abuse of process in that sense. His purpose in inspecting the documents will be to ascertain whether the production of the documents is necessary in the proper conduct of the committal proceedings and whether it is reasonably likely that they will add in the end in some way or other to the relevant evidence in the case. If he is not so satisfied, he should, in my opinion, set the subpoena aside as being too wide. If, on the other hand, he is so satisfied that all or even some of the documents are necessary in the proper conduct of the committal proceedings and reasonably likely to add in the end in some way or other to the relevant evidence in the case, the documents of which he is so satisfied should remain in the custody and control of the court.

39. As counsel for the second respondent has frankly revealed that he proposes to seek an order that the Magistrate make the documents covered by the subpoena and produced to the court available for inspection by the defence, and as it is that step which the prosecutor seeks to prevent by the issue of a writ of prohibition, I now turn to deal with the Magistrate's discretion in that respect.

40. It is well established by authority that a Magistrate has a discretion whether to grant access to a document produced to him on summons. The discretion is judicial, to be exercised in the interests of the fair conduct of the hearing with due regard to claims such as legal professional privilege and confidentiality (Maddison v. Goldrick (1976) 1 NSWLR 651; Attorney-General for New South Wales v. Findlay (1976) 9 ALR 521; Commissioner for Railways v. Small (1938) 38 SR(NSW) 564 at 574; Choo Cheng Kui v. Kenneth Quinn and Others (a decision of the Full Court of the Federal Court, delivered 25 September 1984); National Employers' Mutual General Association Ltd v. Waind (1978) 1 NSWLR 372 at 384 (affirmed by the High Court at [1979] HCA 11; (1979) 141 CLR 648; 24 ALR 86).

41. Again, the relevant principle is that inspection should be granted so far as is necessary in the proper conduct of the litigation and this means where it is reasonably likely to add in the end in some way or other to the relevant evidence in the case. As Moffit P. observed in Waind v. Hill and National Employers' Mutual General Association Ltd, supra, at p 385 the limitation on the exercise of the discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the court has that opinion, inspection will normally be allowed notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross-examination.

42. So far as the present application is concerned, this court has not had produced to it the documents which were produced to the Magistrates Court in response to the summons. It follows that this court has not had an opportunity to assess the relevance of those documents in the committal proceedings against the second respondent on a charge of murder. Nor does it appear from the evidence to this court or the submissions that the Magistrate has inspected the documents to determine whether the summons is an abuse of process as being too wide.

43. All that the Magistrate has decided so far is that the documents set out in paragraph 2 of the summons should be produced and his order has been complied with. In those circumstances it would not be appropriate for this court to order that certiorari run. Writs of certiorari and prohibition originated as means by which the Curia Regis (and later the Court of King's Bench) kept inferior courts within their jurisdiction. Certiorari will go once a decision has been reached to bring up the record of the decision for review by the Superior Court, to be quashed if made without jurisdiction.

44. The principal use of prohibition is to intervene in proceedings pending or still incomplete. The Magistrate has not yet exercised in full his jurisdiction with respect to production of documents in response to the summons. I have already expressed my opinion that in ordering compliance with the summons he acted correctly. But he has yet to decide whether the summons is too wide. Nor would it be appropriate for this court to prohibit inspection of the documents by the second respondent when no application to that effect has yet been made, even though counsel for the second respondent has indicated that he proposes to make such an application. An application by the second respondent to inspect will not arise if the Magistrate decides that the subpoena is too wide and therefore an abuse of process.

45. The order nisi is discharged.

46. I shall hear counsel on the question of costs. I intimate, however, that, as the order has been discharged on grounds not argued on behalf of the second respondent, I have reached a tentative conclusion that no order for costs should be made.