The Queen v David Alexander Salasch [2001] ACTSC 70 (20 July 2001)

Last Updated: 27 September 2001

The Queen v David Alexander Salasch

[2001] ACTSC 70 (20 July 2001)

CATCHWORDS

COSTS - application for costs of motion to set aside subpoena or to be excused from compliance with subpoena - subpoena returnable without notice to prosecution on date in advance of trial - no apparent forensic purpose for issuing subpoena - compliance with subpoena not pressed at hearing of application - costs of application and of production of documents for which privilege claimed awarded against applicant on indemnity basis.

CRIMINAL PROCEDURE - whether subpoena issued in advance of arraignment or date of trial is issued in a criminal proceeding - it is not - civil rules as to costs apply.

Supreme Court Rules, O 39 r 32, O 80

Supreme Court Act 1930, s 23(1)

Alister and Others v The Queen [1983] HCA 45; (1984) 154 CLR 404

R v Barbaro [1992] ACTSC 24; (1992) 108 ACTR 1

Greyhound Australia Pty Ltd and others v Deluxe Coachlines Pty Ltd and others (1986) ALR 93; 11 FCR 592

R v Goia (1988) 81 ALR 656; 35 A Crim R 473

No. SCC 95 of 1998

Judge: Miles CJ

Supreme Court of the ACT

Date: 20 July 2001

IN THE SUPREME COURT OF THE )

) No. SCC 95 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE COMMISSIONER OF POLICE

Plaintiff

AND: DAVID ALEXANDER SALASCH

Defendant

(THE QUEEN

AGAINST

DAVID ALEXANDER SALASCH)

ORDER

Judge: Miles CJ

Date: 20 July 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant pay the costs of the Commissioner in relation to the notice of motion and in relation to compliance with the subpoena on an indemnity basis.

1. This is an application for costs made by the Commissioner of Police (the Commissioner) under O 80 of the Supreme Court Rules against David Alexander Salasch (David Salasch), who, at the time of the application, had been committed for trial in this Court. He has since pleaded guilty.

2. On 11 May 2001 the Commissioner caused to be issued a notice of motion under O 80 r 13 returnable on 14 May 2001 seeking various orders including:

* an order that a subpoena addressed to the Commissioner dated 9 March 2001 (the

subpoena) be set aside;

* alternatively an order that the Commissioner be excused from producing the documents listed in par (ii) of List 1 in the schedule to the subpoena;

* an order that David Salasch pay the Commissioner's costs of the motion on a full solicitor/client indemnity basis.

3. The notice of motion purported to be issued in proceedings between the Queen and David Salasch and bore the number SCC 95 of 1998 which the Registry had assigned to those proceedings.

4. The subpoena was a subpoena to produce documents for the purpose of evidence before the Court on 23 March 2001. The documents required to be produced were set out in the schedule as follows:

"Originals or certified copies of tapes and transcripts of all interviews, records of interviews and records of conversations - between the Australian Federal Police and the named parties in List 1 below - for the periods 1 January 1997 to date of this subpoena, including but not limited to matters relating to the prosecution of David Alexander Salasch, Gregory Hinton, David Claxton, Wayne Williamson & Trevor Finnegan/Finnigan.

List 1

(i) Simon Hartnett - including but not limited to record of conversation with Detective Constable Senior of 31 March 1998;

(ii) Trevor John Finnegan/Finnigan; and

(iii) Brett Cole."

(Emphasis as in original.)

5. The subpoena bore a heading which indicated that it was issued in proceedings between David Salasch, applicant, and the Queen, respondent, but it bore also the Registry number SCC 95 of 1998.

6. The subpoena was issued by solicitors acting for David Salasch in his forthcoming trial following his committal for trial as long ago as 3 August 1998. That was followed by a callover in this Court on 27 October 1998 and a directions hearing on 27 November 1998.

7. There was no further movement until 3 March 2001, when the trial (or the first of two proposed sequential trials) was fixed to begin on 21 May 2001. An indictment appears to have been presented on 12 April 2001. On 2 April 2001 David Salasch's counsel made an application to the Court that the five counts on the draft indictment be split into two separate trials. The first trial was set down for 23 May 2001 with the second trial to follow immediately afterwards. On 23 May 2001 David Salasch initially pleaded not guilty upon arraignment. The indictment was amended after the jury had been empanelled and David Salasch then pleaded guilty to one count of supplying methamphetamine to Brett Cole and one count of supplying methamphetamine to Simon Hartnett. The Director of Public Prosecutions accepted the plea in full discharge of the indictment.

8. Both offences were committed in 1997. The persons supplied were two of the several persons named in the subpoena. The documents in respect of which privilege was claimed in the application by the Commissioner are documents relating to one of those several persons named.

9. Objection having been taken to production of the documents for which privilege was claimed, the party seeking access to the documents must demonstrate a legitimate forensic purpose for doing so. If that purpose is demonstrated, the Court will proceed to balance competing interests in order to determine whether the claim for public interest immunity should be upheld: see Alister and Others v The Queen [1983] HCA 45; (1984) 154 CLR 404. The onus of demonstrating a legitimate forensic purpose is not necessarily a heavy one, and where the application for access is made on behalf of an accused person for the purposes of a criminal trial, it is sufficient that the applicant show that it is at least "on the cards" that such a legitimate forensic purpose exists.

10. It was not apparent to me on the face of the subpoena what forensic purpose could have been served by those representing David Salasch having access to the wide range of documents sought by the subpoena, namely all records of conversation between the Australian Federal Police and the person named in par (ii) of List 1 of the schedule to the subpoena during the period from 1 January 1997 to the date of the subpoena.

11. The affidavit of Assistant Commissioner John Murray sworn 11 May 2001 showed that the person was a police informant who was supplying information in connection with an investigation into various criminal activities in Canberra. The deponent had read the documents for which privilege was claimed and, according to the affidavit, they constituted records of confidential conversations with that person. On that basis it appeared to me that a legitimate forensic purpose had not been demonstrated, and further that, even if it had, the Commissioner had made out a prima facie case of public interest privilege. However, a ruling became unnecessary because during the hearing Ms Foliaki-Singh, who appeared for David Salasch, stated that she did not press for production of the documents for which privilege was claimed. It was common ground that all other documents which fell within the scope of the subpoena had been produced to the Court, not in compliance with the subpoena itself, but in June 2000, apparently in compliance with a similar subpoena in another matter. Those documents apparently remain in the custody of the Court, or did so at the date of hearing of the present application, and if that is or was so, then the subpoena does not apply to them: See O 39 r 32 (which reflects the general or common law). Thus by the time the hearing concluded there was nothing to rule on.

12. The Commissioner then applied for costs of the motion and of compliance with the subpoena.

13. The principles to be applied to the application are set out in R v Barbaro [1992] ACTSC 24; (1992) 108 ACTR 1 and there is no need to repeat them. One difference of substance is that in Barbaro the whole of the subpoena was, on its face, oppressive, whereas in the present case, the Commissioner resisted only that part of the subpoena which required production of documents for which public interest privilege has been claimed. However, it may also be of significance that in Barbaro the subpoena was returnable on the first day of the proposed trial (see below). Also in Barbaro, the issue of the Commissioner's resistance to the subpoena fell to be decided. In the present case the Commissioner has produced all documents within his power or possession, or has otherwise indicated where they may be located. The Australian Government Solicitor notified the office of the solicitors for David Salasch on 10 and 11 May that the claim for privilege would be pressed and that costs would be sought. However the solicitors did not withdraw their insistence on production of the outstanding documents until the morning of 14 May 2001.

14. Initially I had a provisional view that the present matter differed from Barbaro in the sense that in that case the subpoena was oppressive on its face, whereas in the present case the solicitors for David Salasch were in no position at the time of the issue of the subpoena to know whether privilege might attach to, or be claimed for, some of the documents. At the same time, as already indicated, I did not understand the relevance of the documents for the purpose of conducting the defence of David Salasch. For that reason I considered that I would be in a better position to decide once I had heard the evidence at the trial. However the plea of guilty avoided that occurring. A statement of facts was tendered for the purpose of sentencing. I invited further submissions on the present application following the sentencing hearing and it is sufficient to say that nothing was put. I still do not know what forensic purpose could have been served by production and inspection of the documents in question.

15. As was emphasised in Barbaro, the system of issue of subpoenas as of course puts the coercive power of the Court into the hands of legal practitioners to be invoked as they will for the purpose of requiring other persons to produce documents and submit them for inspection. Care needs to be taken that third parties are not needlessly and at their own expense dragged into litigation. Although a liberal view should be taken about legitimate forensic purposes on the part of those acting for accused persons, there are still limits. Once the recipient of a subpoena indicates an intention to seek to have the subpoena set aside or to seek to be excused from compliance, practitioners should be astute to recognise any substance in the grounds for resistance. In the present case, the concession that the Commissioner should be excused from compliance was not made until the day of the hearing of the application to be excused.

16. In relation to the discretion to grant or refuse costs, another matter needs to be mentioned. The subpoena in this case was made returnable prior to the date set for trial and before the arraignment of David Salasch. Apart from the question whether there is any power to issue a subpoena returnable before the date of trial or before arraignment (see Greyhound Australia Pty Ltd and others v Deluxe Coachlines Pty Ltd and others (1986) ALR 93; 11 FCR 592) there is a clear issue of principle. Unless a party is able to claim privilege in relation to inspection of the documents produced, it is a well established rule of practice that in the interests of justice all parties to the litigation are permitted to inspect and that inspection is not limited to the party issuing the subpoena. Making a subpoena returnable before the date of trial or arraignment, and without notice to the other party, in this case the Director of Public Prosecutions, allows the party issuing the subpoena to use the coercive power of the Court to inspect the documents in breach of the rule. The procedure adopted on behalf of David Salasch sought to obtain access to documents which were not disclosed to the Director of Public Prosecutions. Ignorance of those documents on the part of the Director of Public Prosecutions may have been unlikely since the documents came from the Commissioner, but the principle still applies.

17. Another matter going to discretion is that, because the subpoena was returnable in advance of the date of trial and before arraignment, it is difficult to see that it was issued in a criminal proceeding as authorised under O 80. This is not a mere academic point. It is elementary that a subpoena requires production to the Court, not to a party or parties. It is for the Court to decide whether inspection by any party will be allowed. Generally, if inspection is allowed, then it is to both or all parties, not only to the party requiring production, except, as sometimes happens, where a party demonstrates privilege in the documents.

18. A criminal proceeding is defined in O 80 as including "a trial on indictment, a proceeding on indictment where a plea of guilty is intended or entered and a committal for sentence pursuant to the Magistrates Court Act 1930, section 90A". In the present case the subpoena was returnable before the date of trial and before any indication of intention to enter a plea of guilty and, it appears to me, without having heard argument on the question that there was no criminal proceeding in the court at the time the subpoena was issued. It should not have been issued and was quite ineffective. Because the present application is, therefore, not in a criminal proceeding, there is power to award costs under s 23(1) of the Supreme Court Act 1930: see R v Goia (1988) 81 ALR 656; 35 A Crim R 473.

19. It should also be noted that I was informed by Mr Berger, for the Commissioner, that the documents for which privilege was claimed were in court for inspection by the Court if necessary. I decided that inspection by me was unnecessary in the light of the observations above.

20. Because it has not been shown that the subpoena served any legitimate purpose in respect of the documents for which privilege is claimed, because the subpoena was not pressed in respect of those documents, because there was no notice of the return of the subpoena to the Director of Public Prosecutions, and because the subpoena was issued at a time when there was no criminal proceeding on foot, the costs of the application by the Commissioner to set aside the subpoena or to be excused from compliance should be paid by David Salasch.

21. Application was made for costs to be assessed or taxed on "a full solicitor/client indemnity basis". In my view such an order is appropriate. The Commissioner made known the urgency and substantial nature of the matter raised by the notice of motion and gave ample opportunity for an indication that the subpoena would not be pressed. In the absence of such indication until the date of the hearing of the motion, substantial work had to be done by the solicitors for the Commissioner virtually at the last moment, and the effort that went into it was mostly wasted.

22. David Salasch is to pay the costs of the Commissioner in relation to the notice of motion and in relation to compliance with the subpoena on an indemnity basis.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 20 July 2001

Counsel for the Plaintiff: Mr A Berger

Solicitor for the Plaintiff: Australian Government Solicitor

Counsel for the Defendant: Ms S Foliaki-Singh

Solicitor for the Defendant: Sheila Foliaki-Singh & Associates

Date of hearing: 15 May 2001

Date of judgment: 20 July 2001