Update: See also Liristis v Gadelrabb [2009] NSWSC 441, and Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064. And Taylor v O’Neill [2012] NSWSC 626 where a solicitor sued for negligence successfully resisted an application to set aside a subpoena issued to the police to produce the plaintiff’s criminal record in circumstances where its contents were relevant only to credit in a ‘she said, he said’ contest of evidence between him and the former client plaintiff.
Original post: The short answer is — yes. Jack Brabham Engines Ltd v Beare [2010] FCA 35 is a decision on an application to set aside a subpoena. One of the plaintiffs subpoenaed the police to produce the ‘criminal history records’ of one of the respondents. The plaintiff said the documents were potentially relevant to the credit of the respondent. Evidently, there was some evidence in the case, admitted subject to the resolution of objections ‘relating to the conduct of [the respondent] involving the police and alleged offences which … would or could be of apparent relevance to the matters between the parties in this case.’ So the subpoena could not be regarded as just a fishing expedition. The credibility of the defendant’s evidence was likely to be important for the resolution of the case. Relatively recently appointed Justice Jayne Jagot found that the subpoena was not an abuse of process and refused to set it aside. Her Honour emphasised, however, that the fact that she refused to set aside the subpoena was only phase one in the multi-phase life of a subpoena.
Yet to be ruled on were whether the plaintiff should be permitted to inspect the documents produced in response to it, and if so on what terms, and whether any particular document so produced was admissible. Under the uniform evidence legislation, evidence as to the credit of a witness is inadmissible: s. 102. There is a wide exception to that rule, namely that evidence adduced through the cross-examination of a witness which goes to that witness’s credit is admissible if it meets certain tests: s. 103. Those tests are stricter under the uniform evidence legislation than they were at common law; only ‘if the evidence could substantially affect the assessment of the credibility of the witness’ is it admissible. In this case, if the ‘criminal history records’ of the defendant revealed that he had committed crimes sufficiently recently, which were either inherently relevant to his credibility (e.g. perjury or a dishonesty offencee) or the nature of which were sufficiently relevant to the the case then cross-examination by reference to them would be allowed.
Other cases which have considered similar questions include:
- Dorajay Pty Limited v Aristocrat Leisure Ltd [2005] FCA 588
- Cosco Holdings Pty Limited v Federal Commissioner of Taxation [1997] FCA 1504
- Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911
- Brand v Digi-Tech (Australia) Pty Ltd [2001] NSWSC 425
- Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
- Australian Securities and Investments Commission v Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526
- Liristis v Gadelrabb [2009] NSWSC 441.
