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Key decisions

  • RS v Commissioner of Police (NSW) [2026] NSWCCA 128
  • NR v R [2026] NSWCCA 126

RS v Commissioner of Police (NSW) [2026] NSWCCA 128

Subpoenas – legitimate forensic purpose – disclosure

In this decision the Court of Criminal Appeal (‘CCA’) has provided some practical guidance for cases where a subpoena is challenged on the basis it lacks legitimate forensic purpose (‘LFP’).

The applicant was subject to charges relating to child abuse material. The Commonwealth Director of Public Prosecutions (‘CDPP’) disclosed information and materials relating to the applicant’s son, showing the son had been subject to allegations of sexual misconduct relating to his (the son’s) daughter. This was of potential relevance to the applicant’s trial, since the son worked with the applicant and therefore had an opportunity to access the applicant’s phone. If it were established there was a reasonable possibility the son accessed the material on the applicant’s phone, that would amount to an answer to the charges against the applicant.

The applicant sought and obtained a short service subpoena on the Commissioner of Police requiring production of the brief material relating to the son, as well as computer records associated with those charges. Practitioners may have experienced that it is now commonplace for the Commissioner to seek to set aside such a subpoena upon the basis it lacks an LFP.

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