Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064

Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064

Leave to appeal was warranted because the Magistrate refused production of documents relating to Susan Brock on the basis of a non-existent rule of law that material going only to the credit of a Crown witness who is not the informant could not be produced. Since the Magistrate did not apply the correct legal principle or undertake the required assessment of legitimate forensic purpose, and the Supreme Court did not have the material before the Magistrate, the appropriate course was to allow the appeal and remit the subpoena issue concerning Susan Brock to the Local Court to be decided according to law.

Jurisdiction
Australia
Judgment Date
20 September 2010
Procedural Posture
Appeal From an Interlocutory Local Court Order in Summary Criminal Proceedings Concerning Access to Subpoenaed Documents / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; issue remitted to the Local Court; no order as to costs.
Legal Topics
['subpoenas' 'legitimate Forensic Purpose' 'credit of Witness' 'interlocutory Orders' 'leave to Appeal' 'question of Law']
['evidence' 'criminal Procedure' 'appeals'] ['subpoenas' 'legitimate Forensic Purpose' 'credit of Witness' 'interlocutory Orders' 'leave to Appeal' 'question of Law']

Case Brief

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Procedural Posture

Appeal From an Interlocutory Local Court Order in Summary Criminal Proceedings Concerning Access to Subpoenaed Documents / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Local Court Magistrate's interlocutory subpoena decision." 'Whether there is a rule of law preventing production of material going only to the credit of a Crown witness who is not the informant.' 'Whether the subpoena relating to Susan Brock lacked a legitimate forensic purpose or constituted a fishing expedition.' 'Whether the issue of production of and access to documents relating to Susan Brock should be remitted to the Local Court.']

Ratio Decidendi

Leave to appeal was warranted because the Magistrate refused production of documents relating to Susan Brock on the basis of a non-existent rule of law that material going only to the credit of a Crown witness who is not the informant could not be produced. Since the Magistrate did not apply the correct legal principle or undertake the required assessment of legitimate forensic purpose, and the Supreme Court did not have the material before the Magistrate, the appropriate course was to allow the appeal and remit the subpoena issue concerning Susan Brock to the Local Court to be decided according to law.

Court Disposition

Leave to appeal granted; appeal allowed; issue remitted to the Local Court; no order as to costs.

Orders

  • ['I grant the plaintiff leave to appeal from the decision of his Honour of 10 May 2010.' 'The appeal is allowed.' 'The question of the production of and access to documents referred to in the subpoena relating to Susan Brock is remitted to the Local Court to be decided according to law.' 'There is to be no order as...