The correct test for determining whether a defence summons to produce documents in criminal proceedings has a legitimate forensic purpose is whether there is a 'reasonable possibility' the documents will materially assist the defence — not whether it is probable they will be useful. The 'on the cards' formulation from Alister v R is to be understood as expressing this reasonable possibility standard, not a probability standard. The interpretation in Fitzgerald v Magistrates' Court that 'on the cards' means 'within the range of probability' is incorrect. The prosecutor's duty of disclosure extends to 'unused material' that tends to weaken the prosecution case or strengthen the defence case. International human rights principles, particularly the equality of arms principle under the ICCPR, inform the scope of the court's power to strike out defence summonses and the prosecutor's duty of disclosure, even where the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not apply.
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