R v LAKALAKA [2004] NSWCCA 207

R v LAKALAKA [2004] NSWCCA 207

The Crown's application for subpoenas should be granted because the applicant's objections did not justify refusing the orders: the asserted abuse of process was not sufficiently established at this stage, the former legal advisers were persons who could be ordered under section 12(1)(b) of the Criminal Appeal Act to attend and be examined, and the breadth of the subpoenas was not shown to be oppressive given the potential relevance of the applicant's instructions to whether his pleas were free, voluntary and pursuant to a genuine consciousness of guilt.

Jurisdiction
Australia
Judgment Date
04 June 2004
Procedural Posture
Criminal Appeal Application Concerning Withdrawal of Guilty Pleas and Crown Application for Subpoenas / Application Before the Court of Criminal Appeal for Orders Issuing Subpoenas Before the Substantive Application to Set Aside Pleas
Outcome
Crown application for subpoenas granted subject to minor amendments to the form of the subpoenas.
Legal Topics
['withdrawal of Guilty Pleas' 'subpoenas' 'compellable Witnesses' 'production of Documents' 'abuse of Process' 'professional Privilege']
['criminal Law' 'criminal Procedure'] ['withdrawal of Guilty Pleas' 'subpoenas' 'compellable Witnesses' 'production of Documents' 'abuse of Process' 'professional Privilege']

Case Brief

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Procedural Posture

Criminal Appeal Application Concerning Withdrawal of Guilty Pleas and Crown Application for Subpoenas / Application Before the Court of Criminal Appeal for Orders Issuing Subpoenas Before the Substantive Application to Set Aside Pleas

Legal Issues

  1. 1 ['Whether it would be an abuse of process to allow the Crown to adopt a position different from its earlier consent to the applicant withdrawing his pleas.' "Whether section 12(1)(b) of the Criminal Appeal Act authorised orders requiring the applicant's former legal advisers to attend and be examined before the Court." 'Whether the proposed subpoenas duces tecum were oppressive in seeking instructions and documents relating to the District Court matter.']

Ratio Decidendi

The Crown's application for subpoenas should be granted because the applicant's objections did not justify refusing the orders: the asserted abuse of process was not sufficiently established at this stage, the former legal advisers were persons who could be ordered under section 12(1)(b) of the Criminal Appeal Act to attend and be examined, and the breadth of the subpoenas was not shown to be oppressive given the potential relevance of the applicant's instructions to whether his pleas were free, voluntary and pursuant to a genuine consciousness of guilt.

Court Disposition

Crown application for subpoenas granted subject to minor amendments to the form of the subpoenas.

Orders

  • ['Orders made in terms of the two documents addressed to Mr Peter Mitchell Paish in the form initialled by Hulme J and dated 4 June 2004.' 'Orders made directed to Mr Hussein Abou-Ghaida in the form of the two further documents initialled by Hulme J and dated 4 June 2004.']