R v Wilkie [2008] NSWSC 885

R v Wilkie [2008] NSWSC 885

The Court found that section 123 of the Evidence Act 1995 does not abrogate privilege in such a way as to permit enforced production of privileged material by the prosecutor, and that the accused had failed to demonstrate a legitimate forensic purpose, engaging instead in a fishing expedition. Accordingly, the objection to the subpoena was upheld.

Parties
Crown: Regina (Commonwealth); Accused: Daniel Wilkie
Jurisdiction
Australia
Judgment Date
25 August 2008
Procedural Posture
Criminal / Ruling on Objection to Subpoena Prior to Trial
Outcome
Objection to subpoena upheld
Legal Topics
Subpoena, Privilege, Disclosure, Forensic Purpose, Fishing Expedition
Criminal Law Evidence Procedure Subpoena Privilege Disclosure Forensic Purpose Fishing Expedition

Case Brief

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Parties

Regina (Commonwealth)

Crown

Daniel Wilkie

Accused

Procedural Posture

Criminal / Ruling on Objection to Subpoena Prior to Trial

Legal Issues

  1. 1 Whether the accused is entitled to enforce production of privileged conference notes between prosecuting counsel and a witness under s 123 of the Evidence Act 1995
  2. 2 Whether there is a legitimate forensic purpose for the subpoena issued by the accused
  3. 3 Whether the subpoena constitutes a fishing expedition

Ratio Decidendi

The Court found that section 123 of the Evidence Act 1995 does not abrogate privilege in such a way as to permit enforced production of privileged material by the prosecutor, and that the accused had failed to demonstrate a legitimate forensic purpose, engaging instead in a fishing expedition. Accordingly, the objection to the subpoena was upheld.

Court Disposition

Objection to subpoena upheld

Orders

  • Objection to the production of notes of conference upheld
  • Subpoena to the Commonwealth Director of Public Prosecutions not enforced