Application for leave to appeal against conviction
Applicant seeks documents from Chief Commissioner of Victoria Police
Application pursuant to s 317 of the Criminal Procedure Act 2009
Quick Take
1In a criminal appeal, the 'reasonable possibility' (or 'on the cards') test for whether documents sought under s 317 of the Criminal Procedure Act 2009 will materially assist the applicant's case is to be applied flexibly and with common sense; mere speculation is insufficient, but a greater degree of uncertainty may be tolerable than in civil proceedings.
2A repeated interlocutory application for production is not an abuse of process where it is supported by new evidence not available at the time of the earlier application, even if the earlier application was not made in circumstances of urgency.
3Where official reports establish that listening devices were permanently installed in a prison and contemporaneous records cannot confirm whether they were activated only pursuant to warrants, there is sufficient uncertainty to support a reasonable possibility that recordings exist, notwithstanding the respondent's assertion that devices were only activated under warrant authority.
