By Paul Gregoire and Ugur Nedim
After the New South Wales police commissioner refused to produce materials relating to the 2025 arrest of a NSW man charged with offences relating to the sexual abuse of his daughter, which had been requested by the man’s father, who is himself facing child abuse material offences, the NSW Court of Criminal Appeal (NSWCCA) has found the accused has a right to such information.
On searching the mobile phone belonging to NSW man RS, on his return to Sydney Airport from Thailand on 30 May 2024, Australian Border Force officers allegedly located 140 child abuse images and 67 videos depicting young girls between the ages of 3 and 17 years old. These materials had been obtained via messaging app Telegram, and an image had also been sent to another.
RS was charged with four child abuse material offences on 16 September 2024. And on 2 September 2025, his son RJ was charged with child sexual offences involving allegations involving his daughter. RS then sought materials relating to his son’s charges, including his court attendance notice and police fact sheet, and the Commonwealth Director of Public Prosecutions provided this on 8 May 2026.
Similar materials relating to RJ’s case were then requested from the NSW police commissioner by RS, via a subpoena and, in response, the commissioner filed a Notice of Motion on 14 May 2026 refusing to produce those materials. On the 22 May 2026, NSW District Court Judge Elizabeth Ryan found “no legitimate forensic purpose existed for the applicant to obtain the material sought”, setting aside the subpoena on that basis.
RS sought leave to appeal the decision to the NSWCCA on 4 June 2026 on the basis that Judge Ryan’s decision to refuse the subpoena involved multiple errors, and, as this was an interlocutory matter, or an interim decision that must be made in respect of an ongoing trial that does not bring a conclusion to the broader case, it was promptly dealt with via the higher court.
Charges against father and son
RS is facing four child abuse material offences, and these alleged crimes and those of his son both had bearing on the interlocutory matter.
Three of the charges against RS comprise of using a carriage service to access, transmit, publish or to solicit child abuse material, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth). This is a serious crime that carries up to 15 years prison time.
The final charge that RS will be facing in the NSW District Court is one of count of possessing or controlling or producing, supplying or obtaining child abuse material through the use of a carriage service, contrary to section 474.23(1) of the Criminal Code. This offence too carries up to 15 years imprisonment.
As for RJ, the son of RS, he is facing one charge of intentionally inciting a child under the age of 10 years to sexually touch him, which is contrary to section 66DA of the Crimes Act 1900 (NSW). This crime can see a person liable to up to 16 years gaol time.
The man is further facing one count of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, which is contained under subsection 66C(2) of the Crimes Act. And this offence carries up to 20 years inside.
The third charge the son is facing is one count of aggravated sexual intercourse with a child, outside Australia, whilst in a position of trust, contrary to section 272.10(1) of the Criminal Code. And this is a crime that can see an offender put away for up to 25 years.
Following RS having successfully secured the materials relating to his son’s case from the CDPP, his legal representatives then sought leave to issue a subpoena to request the NSW commissioner of police produce a brief of evidence relating to his son’s charges, as well as any police database entries relating to these alleged crimes.
The NSW police commissioner refused the request, considering there was no “legitimate forensic purpose” for securing the materials, as the two sets of charges are unrelated. This meant that the commissioner and the judge determined that the subpoena had failed the “on the cards” test, or that there must be a reasonable basis that the evidence sought will matter, short of any certainty.
But RS’s legal team countered this claim, as “the central issue” at trial is whether it was RS using Telegram to receive and transmit child abuse material, or if it might have been another. And further, given that RJ, his son, worked with RS, he therefore had access to the older man’s phone and as the younger man “had a sexual interest in children”, the evidence sought appeared highly relevant.
On the cards on appeal
RS then appealed the denial of the materials to the NSWCCA on 21 August 2026. The accused did so based on a single ground of appeal, with two errors involved. The first problem was that the judge had made an error in finding there was no relevance between the two sets of evidence, and the second being that her Honour’s interpretation and application of the ‘on the cards test’ was flawed.
NSWCCA Justice Nicholas Chen explained that Judge Ryan had conceded no apparent relevance between the two sets of evidence and charges, as her Honour accepted the commissioner’s assertion that there was a distinct difference in offending, and therefore, the subpoena for evidence was speculative, and she found this was strengthened as no electronic devices were seized from RJ.
But RS argued that the relevance between the materials was that his son may have a sexual interest in young girls, and this was the motive for accessing his father’s phone. Yet, the NSWCCA justice found that the trial judge had mischaracterised this as an attempt to establish RJ having a ‘sexual interest in child abuse material’, when it should have rather been a ‘sexual interest in children’.
“This mischaracterisation was plainly material: when assessing legitimate forensic purpose, the task of establishing a sexual interest in children was appreciably less demanding than the one required for establishing a sexual interest in child abuse material,” Justice Chen set out, and then added that this mischaracterisation was “clearly in error”.
A further issue with the trial judge’s decision not to uphold the request involved the CDPP having already disclosed some of the material related to his son’s case, which had been in line with “statutory and common law obligations”. His Honour then cited the authority in the 2004 NSWCCA case Reardon versus R, in which it was established that all relevant material must be disclosed.
The justice further noted that the CDPP’s ‘Statement on Disclosure in Prosecutions Conducted by the Commonwealth’ further supports the position in Reardon. And despite the CDPP having handed over the CAN, the police fact sheet and the police interview from the case relating to RS to the defence team in line with the law, the trial judge did not consider this as relevant to the further request.
The CDPP having provided these materials on request, however, did amount to it having determined that there was a “legitimate forensic purpose” for their provision. Yet, the NSW police commissioner then turned around and suggested that materials relating to the son’s case had no legitimate forensic purpose, and Justice Chen found he could not agree with this assessment.
In terms of the differences in the types of evidence involved in the two trials, of which the police commissioner cited as reason not to hand over the materials, this idea failed to consider the similarities between the two sets of evidence, as there was a clear similarity between these materials, which was the son’s sexual interest in young girls.
His Honour further explained that the decision not to comply with the request was based on the trial judge’s flawed reasons that involved her finding that as the offender had perpetrated a sexual assault against his daughter, it could not reasonably be inferred that he had a sexual interest in other young girls, and therefore, there was no legitimate forensic purpose.
“The material sought had a clear forensic purpose: it possessed obvious evidentiary value and could well be vital to the ‘defence’ the applicant seeks to pursue at trial,” his Honour determined, and added that the defence had “demonstrated a legitimate forensic purpose for the material sought on subpoena”. Therefore, the appeal had been made out.
The orders of the day
On 28 August 2026, Justice Chen ordered that the appeal be allowed, that the order Judge Ryan made on 22 May 2026 be set aside, that the 14 May 2026 Notice of Motion by the NSW police commissioner refusing the request be dismissed, and that the commissioner hand over this evidence to the two parties involved in the NSW District Court case by 4 September 2026.
And NSWCCA Justices Anna Mitchelmore and Deborah Anne Sweeney both agreed with their colleague’s orders.
