and Milton Jones (a pseudonym)[1] v Director of Public Prosecutions
[2015] VSCA 272
•30 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0086 | |
| MILTON JONES (A PSEUDONYM)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant
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| JUDGES: | REDLICH and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 May 2015 |
| DATE OF JUDGMENT: | 30 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 272 |
| JUDGMENT APPEALED FROM: | DPP v [Jones] (Unreported, Judge Mullaly, County Court of Victoria, 22 April 2015) |
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CRIMINAL LAW – Interlocutory appeal – Broad and argumentative subpoenas directed to Director of Public Prosecutions and Commissioner of Victoria Police – Trial judge set aside subpoena issued to Director and refused to order further compliance with Commissioner’s subpoena – Global ruling by trial judge – Whether Director’s subpoena disclosed a legitimate forensic purpose – Leave to appeal granted and appeal allowed in part to require production of material relevant to theory of ‘unconscious transference’.
CRIMINAL LAW – Whether order made pursuant to s 357(4) of the Criminal Procedure Act 2009 that VLA provide the applicant with representation is an interlocutory decision – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The Applicant appeared in person | |
| For the Respondent | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions. |
REDLICH JA
SANTAMARIA JA:
The applicant is charged with six counts of indecent assault on a male person, two counts of attempted buggery and one count of buggery. The alleged offences are said to have taken place between 1975 and 1977. There are three complainants. The trial has not yet commenced.
The issues raised in this interlocutory appeal are unusually ill-defined. The applicant is self-represented, having refused to cooperate with lawyers appointed by Victoria Legal Aid (‘VLA’), and has not filed documents for the appeal in any proper form. Ultimately, the Court of Appeal Registry accepted the application as an appeal against the trial judge’s refusal to certify in respect of two interlocutory decisions made as to:
·subpoenas directed to the Chief Commissioner of Police, Mr Ken Lay (‘the Commissioner’) and the Director of Public Prosecutions, Mr John Champion (‘the Director’) (‘Ruling No 1’); and
·whether the applicant can personally cross-examine certain protected witnesses, the applicant having refused representation offered by VLA (‘Ruling No 2’).[2]
[2]Ruling No 2 is so described for convenience as that is how the matter came before us. As discussed later in our reasons, Ruling No 2 is not properly to be characterised as an interlocutory decision.
The appeal proceeded upon the basis that these were the issues raised.
We should first briefly address a submission repeatedly made by the applicant before the trial judge and also raised before us that all Victorian legislation, including that under which he is charged, is invalid and that no Victorian court has power to hear his case. It was not easy to follow the thread of his argument, but the applicant appeared to be contending that the Australian legal system is null and void being based on colonial laws, and that since Australia joined the League of Nations, the representatives of the monarch of a foreign power (the United Kingdom) have been incapable in law of assenting to any legislation passed in Australia and that the sovereignty of the Australian people has been abrogated.[3] The applicant was prepared to waive his objection to the Court as presently constituted having authority to hear the appeal, in order that we could rule upon his appeal. For present purposes, it suffices to say that we are unable to discern any arguable basis for the submission that the charges he is facing are invalid or that the County Court has no power to hear the matter.
[3]The orders sought by the applicant on this appeal included, but were not limited to, that the position of Queen of Australia is invalid, that no bill of the Victorian Parliament has been made law since 1919, that the current Victorian Parliament be dismissed, and that the Court appoint the applicant as ‘the autocratic Head of Government of the State of Victoria to establish the rule of law and a constitution with a majority decision of the Sovereignty of the People of Victoria’.
The proceedings below
On 19 August 2014, the applicant issued subpoenas to the Commissioner and the Director. In respect of the Commissioner’s subpoena, Victoria Police answered the subpoena and provided documents including Interpose notes and other notes from police officers involved in the investigation. The Director did not provide any documents pursuant to the subpoena issued against him.
On 24 February 2015, the matter was listed for application for leave to issue subpoenas. The trial judge ordered that:
(a) leave be granted for the parties to copy and/or inspect documents produced pursuant to the subpoena addressed to the Commissioner, and that no further documents were required to be provided in respect of that subpoena; and
(b) the subpoena addressed to the Director be set aside.
At the conclusion of the hearing, the judge advised the applicant that, pursuant to s 357 of the Criminal Procedure Act 2009, the applicant would not during the trial be entitled to cross-examine the complainants, being protected witnesses under s 357, and that he would need to obtain appropriate representation for that purpose. The applicant had previously refused to accept representation from VLA for the proceedings.
On 24 March 2015 the matter was listed for mention. The applicant indicated again that he did not have legal representation. The judge ordered that VLA provide representation to the applicant for the cross-examination of the complainants at trial. The judge explained to the applicant that if he did not accept that representation, pursuant to s 357 the applicant would not be permitted to contradict the evidence of those witnesses. At a further mention on 15 April 2015, the applicant indicated that he did not wish to engage legal representation in order to cross-examine the complainants.
On 22 April 2015, the judge refused to certify the orders made on 24 February 2015 in respect of the subpoenas directed to the Commissioner and the Director. This constituted Ruling No 1. The judge made the following findings:
Considering the content of the subpoenas and all matters raised by [the applicant], in my view, the decision he seeks to appeal is not of sufficient importance to justify the Court of Appeal to consider the matter.
It is far from reaching that threshold. His proposed appeal and his arguments in respect of that are entirely without any merit whatsoever.
I do not consider the decision that I made is attended by doubt. It was, in my view, reason in accordance with well settled principles relating to subpoenas and was, in all respects, an orthodox approach to a very broadly drafted and argumentative subpoena.
The applicant complains in respect of the order of 24 March 2015 that VLA provide the applicant with legal representation. The judge did not consider that he had made any interlocutory decision, but, in the alternative, made clear that he refused certification. This constituted Ruling No 2.
Principles on the review of a refusal to certify an interlocutory appeal
The applicant seeks to review the trial judge’s decisions to refuse to certify Rulings No 1 and 2. Pursuant to s 296(4) of the Criminal Procedure Act 2009, this Court must consider the matters set out in s 295(3) and may grant leave to appeal if satisfied as required by s 297.
Ruling No 1 — Subpoenas
It seems that the applicant intends to rely at trial upon a theory that ‘unconscious transference’ renders the evidence of the witnesses against him (and indeed all witnesses in criminal trials and elsewhere) unreliable. The applicant claims to be an expert in unconscious transference. The subpoenas to the Commissioner and the Director appear to have been issued principally for the purpose of gathering evidence to support this submission.
The subpoenas are lengthy, argumentative documents that were clearly prepared without legal assistance. They make requests that are not within the proper scope of a subpoena (for instance, asking for psychiatric assessments to be produced in respect of each police officer, agent of the Director or barrister who has spoken to any witness). The Commissioner’s subpoena contains 23 items. The Director’s subpoena contains 25 items. Some, though by no means all, of the items are repeated in the two subpoenas.
The respondent contended before the trial judge, and maintained before us, that both subpoenas were broad, oppressive and burdensome. In respect of the Commissioner’s subpoena, Victoria Police stated that the applicant had already been provided with a copy of the brief with all documents including diary notes prior to the issuance of the subpoena. Victoria Police nonetheless provided additional documents pursuant to the subpoena as described above.
In respect of the Director’s subpoena, the Director made a number of objections, including that the documents sought were not relevant, that the documents sought were subject to legal professional privilege or fell within the provisions of confidential communications pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958, and that documents sought were not in its possession. The Director argued that the subpoena as a whole disclosed no legitimate forensic purpose and constituted fishing. Counsel for the Director went through each item on the subpoena before the judge and indicated the basis for objection. Many of the documents sought had been provided by Victoria Police. When asked by the judge to identify the forensic purpose for the documents sought, the applicant said that he sought ‘adequate background’ to the unconscious transference that had occurred during the investigation. He claimed to require ‘[e]very communication regarding any evidence, any statements, in this particular trial’.
In his ruling on the Director’s subpoena, the judge made the following findings:
[HIS HONOUR:] In respect of each of the itemised requests, albeit that on occasions the court can globally determine things, they have been enumerated and the prosecution has dealt with each of them. I do not intend to repeat each of the objections made. By and large they were: that legal professional privilege is asserted because what is sought is materials from the Office of Public Prosecutions and its employees, that it is irrelevant, in the sense there is no legitimate forensic purpose, or the answer to the request is in the notes that have been provided by Victoria Police or were to be provided by Victoria Police.
The objections are sustained in each case. Where it is asserted there is no legitimate forensic purpose, I cannot identify one, [the applicant], cannot establish one other than putting forward that the laws of this state do not apply to him –––
APPLICANT: No, the forensic evidence was in the documentation –––
HIS HONOUR: ––– and are null and void. [The applicant], I will not be interrupted in a ruling. Or that his request is for documents to be provided to him to give rise to criticisms or propositions to be put to witnesses that their memories are not legitimate memories but influenced by the conversations that they may have had with others including police officers, and indeed lawyers for the Office of Public Prosecutions subsequent. As I say there is no legitimate forensic purpose identified in the assertion that our laws do not apply to him, and nor is there any legitimate forensic purpose in the assertion that the memories are altered in the sense that [the applicant] asserts, rather he will be provided with the notes which may provide him with some grounds to put the arguments that he says he ought be able to put to witnesses relating to their memory. But beyond that, that is beyond the notes, there is no legitimate forensic purpose in what he seeks.
Many of the requests are vague, and are statements of a proposition dear to [the applicant] it would seem, but of no relevance in the determination of this question as to whether the subpoenas are legitimate.
The objection to the subpoena being made good, I set the subpoena aside, and [the Director] is relieved of any obligation to answer it.
In respect of the Commissioner’s subpoena, the judge ordered that the documents produced pursuant to the subpoena be provided to the applicant. He found that, otherwise, no more documents needed to be provided:
In respect of the subpoena to [the Commissioner], documents have been provided to [the applicant], perhaps in addition or repeating documents that have already been provided to him. In respect of all other requests, they meet the same problems that I outlined in respect of the subpoena to [the Director], there is no legitimate forensic purpose identified, they are vague, there are irrelevancies in there, given that they are statements and the like. When he seeks things the notes will answer them. Beyond that there is nothing that would require [the Commissioner] to provide to [the applicant] anything other than there has been provided.
There is [sic] ongoing obligations on the Crown if any documents are created or come to light that they should disclose to [the applicant]. No doubt that will be done. But other than what has been provided, [the Commissioner] does not have to provide or answer any of the other requests in the subpoena, and insofar as those requests are pressed by [the applicant], those parts of the subpoena other than the items seeking notes and diaries and statements that have been created in the course of the investigation, all other requests are set aside.
As is well established, ordinarily a trial judge’s obligation upon the contest of a subpoena is to address each document sought and each objection thereto, unless the issues and objections raised are the same. It will not generally be sufficient to address the documents globally with generalities.
The judge’s rulings in respect of each subpoena were general and dealt with the items sought globally. In the circumstances we see no error in this regard. The ruling in respect of the Director’s subpoena had followed discussion with counsel for the Director in which submissions were made in respect of each item. The judge clearly accepted each submission made by the Director. In respect of the Commissioner’s subpoena, the judge then found that, to the extent that the subpoena had not already been satisfied, the same objections succeeded. The basis for the two rulings were sufficiently clear and save for what follows, no error has been identified in the approach adopted by his Honour.
We would allow the appeal against the certification with respect to the Director’s subpoena in one limited respect. As we have said, the applicant intends to rely on the theory of ‘unconscious transference’ at trial and the subpoenas appear principally to be attempts to gather evidence to support that submission. Any documents held by Victoria Police or the Director dealing with unconscious transference would be relevant to that case theory. The applicant has a legitimate forensic purpose in seeking the production of any such documents (which may or may not exist). Victoria Police appear to have produced all relevant documents in response to the Commissioner’s subpoena. The Director did not produce any documents in response to the subpoena directed to him.
Documents held by the Director may be different to those held by Victoria Police. It was fairly accepted by counsel for the Director on the appeal that the Director may have documents that were relevant to that forensic purpose. This does not appear to have been recognised during the argument at first instance. To the extent that the Director possesses any documents relating to unconscious transference, those documents should be produced to the applicant.
We would give the applicant leave to appeal against Ruling No 1 and order that such part of the judge’s orders of 24 February 2015 relating to the Director’s subpoena be set aside. We will order that the Director produce any documents in its possession that relate to unconscious transference. We would not otherwise order that any documents are required to be produced pursuant to that subpoena. Of course, these orders do not affect the continuing obligation on the Crown as prosecutor to produce any relevant documents that may later be discovered.
Ruling No 2 — Application of s 357
There is no substance to the appeal in respect of Ruling No 2. Section 356 of the Criminal Procedure Act 2009 provides that a protected witness must not be cross-examined by the accused in person. ‘Protected witness’ is relevantly defined in s 354 to mean the complainant. Section 357 provides:
357 When accused is not legally represented
(1) If the accused is not legally represented, the court must—
(a)inform the accused and the jury (if any) that the accused is not permitted personally to cross-examine a protected witness; and
(b)ask the accused whether the accused has sought legal representation for the cross-examination of a protected witness; and
(c)if satisfied that the accused has not had a reasonable opportunity to obtain legal representation, grant an adjournment if so requested by the accused.
(2)If the accused does not obtain legal representation for the cross-examination of a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to provide legal representation for the accused for that purpose.
(3)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2).
(4)A legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give any instructions to that legal practitioner.
(5)If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.
The primary judge scrupulously complied with the process set out in s 357. The applicant having failed to obtain legal representation, the judge made an order in accordance with sub-s (2) that VLA provide representation to the applicant. VLA was prepared to comply with the order, but the applicant refused representation, with the consequences described in sub-s (5).
The judge made no relevant decision. It was not within his power to refuse to make the order that VLA provide representation to the applicant. The applicant has no right to appeal that order. There being no interlocutory decision, there was no need for the judge to certify. We would refuse the applicant leave to appeal against Ruling No 2.
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