APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2017)
[2017] SASCFC 90
•1 August 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2017)
[2017] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
1 August 2017
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
Application pursuant to section 350 of the Criminal Law Consolidation Act 1935 (SA) to require trial judge to reserve to the Full Court a number of questions of law but as a staged process - discussion of relevant legal principles - whether appropriate to exercise the power - whether questions of sufficient general importance - whether case stated procedure appropriate in the circumstances giving rise to the questions.
Held (The Court): Application dismissed.
Criminal Law Consolidation Act 1935 (SA) s 348, s 350, s 351A, s 352; Evidence Act 1929 (SA) s 53, s 56; Evidence Act 1995 (Cth) s 146, referred to.
R v Gee & Thaller [1999] SASC 116, (1999) 72 SASR 593; R v Elliot [1996] HCA 21, (1996) 185 CLR 250; R v Liddy [2001] SASC 116; Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260, (1999) 106 A Crim R 423; R v Thaller & Gee (Question of Law Reserved) [2001] SASC 14, (2001) 79 SASR 295; R v Kola [2001] SASC 448; Application for Reservation of Questions of Law (No 1 of 2009) [2009] SASC 12; R v Nissen & Vanin [2016] SADC 139; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168, (2012) 83 NSWLR 710; Mehesz v Redman (No 2) (1980) 26 SASR 244, considered.
APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2017)
[2017] SASCFC 90Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
THE COURT
Introduction
The Director of Public Prosecutions has applied to this Court for orders directing a District Court Judge to refer various questions of law to the Full Court for consideration and determination pursuant to sections 350(5) and 351A of the Criminal Law Consolidation Act 1935.
The respondents to the application have been charged on Information with a number of offences including, in the case of the respondent Nissen: manufacturing a large commercial quantity of a controlled drug for sale; trafficking in a large commercial quantity of a controlled drug for sale; and participating in a criminal organisation, and, in the case of the respondent Vanin: participating in a criminal organisation. The alleged offending, if proved, would constitute very serious examples of the offences charged.
At a joint trial in the District Court, the respondents succeeded, following a voir dire hearing, in having certain evidence critical to the prosecution case against both to be excluded. The evidence excluded by the Judge comprised information obtained by the prosecution by way of two GPS tracking devices that had been affixed to two motor vehicles said, according to other circumstantial evidence, to have been associated with the two respondents. The information purportedly records the movements to and from significant locations at significant times.
Following the ruling, counsel for the Director successfully applied to the Judge for an adjournment of the trial in order to obtain instructions. On the resumption of the hearing, counsel made a number of oral applications including that the Judge state a case to the Full Court pursuant to section 350(2) of the Criminal Law Consolidation Act. That application was refused essentially on the basis that such a course would unduly delay the trial contrary to the injunction in section 350(3). However, the Judge did grant a short adjournment in order to permit the Director to apply to this Court pursuant to section 350(5).
The trial has been stayed until further order, in effect, pending the resolution of the present application. To this point, the Director has adopted the position that, without the evidence that has been excluded, there is no reasonable prospect of convictions. Counsel for the Director has indicated that, unless he were to succeed with a stated case such that the evidentiary position were to change, the Director will be obliged to enter a nolle prosequi upon the resumption of the trial. In these circumstances, counsel frankly acknowledged to this Court that the application, if successful, would in effect do the work of an appeal against the Judge’s ruling in circumstances where, but for the case stated procedure, the prosecution enjoys no right of appeal.
The relevant legislation
Section 350 provides as follows.
350—Reservation of relevant questions
(1)In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a) antecedent to trial; or
(b) relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4)A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court.
(5)The Full Court may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.
(6)An application for an order under subsection (5) may be made by—
(a) the Attorney-General or the Director of Public Prosecutions; or
(b) a person who—
(i)has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Full Court; and
(ii)has obtained the permission of the primary court or the Supreme Court to make the application.
(7)If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.
Section 351A provides, relevantly, as follows.
351A—Powers of Full Court on reservation of question
(1)The Full Court may determine a question reserved under this Part and make consequential orders and directions.
Examples—
The Full Court might, for example, quash an information or a count of an information or stay proceedings on an information or a count of an information if it decides that prosecution of the charge is an abuse of process.
The Full Court might, for example, set aside a conviction and order a new trial.
(2)However—
(a)-(b) ...
(c) if the defendant has been acquitted by the court of trial, no determination or order of the Full Court can invalidate or otherwise affect the acquittal.
Section 352 provides, relevantly, as follows.
352—Right of appeal in criminal cases
(1)Appeals lie to the Full Court as follows:
(a) ...
(ab) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i)if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
(b) if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision—
(i)as of right, on any ground that involves a question of law alone; or
(ii)on any other ground with the permission of the Full Court;
(c) ...
(2)If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Full Court.
Given the definition of “issue antecedent to trial” in section 348,[1] paragraph (b) of section 352(1) has no application to this case.
[1] ‘issue antecedent to trial means a questions (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court’.
The matter has been before this Court on a number of occasions part heard during the course of which the Director’s application, in particular, as to the questions it sought to have answered, was progressively modified. The final form of the application, advised to the Court at the hearing on 6 March 2017, seeks a direction to refer the following questions.
Public Interest Immunity
1.Was [the Judge] correct to rule on the admissibility of the GPS evidence without having determined the claims for Public Interest Immunity Privilege made?
Notorious scientific instrument
2.Is a tracking device that relies on GPS a “notorious scientific instrument”?
Section 56 of the Evidence Act 1929
3.Is section 56, properly construed, an aid to proof in relation to:
a. the accuracy and reliability of the recording of the data by the devices; and/or
b. the accuracy and reliability of the reproduction of the data that has been recorded by the devices?
4.[Has the Judge] erred in finding “section 56 is not an aid to proof” in the circumstances of this case?
Circumstantial Proof
5.Was [the Judge] correct in finding that the “information relating to the tracking device and its method of operation and the accuracy of the devices” does not establish a proper basis for the admission of the GPS evidence?
However, at the hearing on 6 March 2017, counsel bifurcated the application. The Director now seeks an order that, in the first instance, the Judge be directed to refer to the Full Court for its consideration only question 1, that is, whether the Judge erred in ruling on the admissibility of the GPS evidence without first having determined a claim for public interest immunity which had arisen. As such, the balance of the application would be deferred on the basis that if the answer to question 1, following referral to the Full Court, were to be ‘yes’, the matter should then be remitted to the Judge for determination of the public interest immunity claim before any further consideration is given by the Full Court to the ordering of a referral of questions 2 to 5.
General principles concerning section 350(5)
Notwithstanding the general nature of the language in section 350(5), the power to direct a judge to reserve a question of law during the course of a criminal trial is only to be exercised in unusual or exceptional circumstances.[2] Undue fragmentation of or interference with the conduct of a criminal trial is to be avoided.[3] The Full Court before exercising the power also will have regard to whether or not such would lead to undue or unacceptable delay in the resolution of the criminal proceedings.[4]
[2] R v Gee& Thaller [1999] SASC 116; (1999) 72 SASR 593 at [6].
[3] R v Elliot [1996] HCA 21; (1996) 185 CLR 250, R v Liddy [2001] SASC 116 at [7], Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423 at [33].
[4] Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423 at [32]-[33].
Importantly, the power of the Full Court to require that a question be reserved is not intended to be a general right of appeal. Appeals to the Full Court in criminal matters are governed by section 352 of the Criminal Law Consolidation Act. The circumstances in which the prosecution may obtain permission to appeal against an acquittal are very constrained. As a consequence, it has repeatedly been observed that the power to refer a question should only be exercised where the issue under consideration is one of general importance in that the answer to it might prove to be of assistance in other cases.[5]
[5] R v Liddy [2001] SASC 116 at [8], Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423 at [33], R v Kola [2001] SASC 448 at [12], Application for Reservation of Questions of Law (No 1 of 2009) [2009] SASC 12 at [13].
The power of reservation is not designed to facilitate advisory opinions and where a direction is made for a reservation it will then fall upon the trial judge to set out for the Full Court any findings of fact necessary for the determination of the questions so reserved.[6]
[6] R v Thaller & Gee (Question of Law Reserved) [2001] SASC 14; (2001) 79 SASR 295, R v Kola [2001] SASC 448 at [9].
In Questions of Law (No 2 of 1999),[7] Doyle CJ (with whose reasons Duggan and Wicks JJ agreed) provided an exposition of the approach to be adopted. His Honour’s observations were made with reference to an earlier form of section 350 and prior to legislative amendments which now allow for an appeal by the prosecution following an acquittal, in limited circumstances, and as provided for in section 352(1)(ab) set out above. Nevertheless, his Honour’s observations remain applicable. In particular, the observations concerning the reluctance to provide the prosecution with a de facto right of appeal in circumstances where no right to appeal lies remain apposite to the present case for the reasons explained by his Honour. As earlier said, it is common ground that there will be no avenue for the prosecution to have the Judge’s decision reviewed in the event that the prosecution were to proceed by the entry of a nolle prosequi. Doyle CJ said this.
Section 350(2)(a) of the Act confers on the Full Court a general discretion. The discretion is to be exercised bearing in mind the purpose of s 350, the context in which the power operates, the circumstances of the particular case, the interests of justice and any relevant matters for consideration that emerge from the terms of s 350.
As is the case with most general discretions, it is not possible or even useful to attempt to state exhaustively, and in the abstract, all of the matters to be considered in the exercise of such a general discretion. What I have just said is no more than an attempt to indicate the general nature of the matters to be considered.
The purpose of s 350 is to enable a relevant question to be determined by the Full Court. But for that section, a relevant question could be determined in criminal proceedings and be incapable of review unless there is a conviction and then an appeal by the accused person. That is so because there can be no appeal from an acquittal. The section contemplates that a relevant question may be considered and determined by the Full Court before the trial proper begins, while it is in progress, or after an acquittal. The fact that a relevant question can be considered and determined before a verdict has been given indicates that Parliament contemplated a relevant question being determined at a time that would enable the Full Court decision to guide a judge in the making of a decision and, I consider, to reconsider a decision already made. However, for reasons that I will indicate shortly, there are strong reasons why the power conferred by s 350(2)(a) should be exercised with restraint when its exercise will interrupt a trial, or is sought with a view to having a trial judge review a decision already made.
Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s 350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application. Parliament could not have intended that the Full Court would exercise its powers under s 350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case. The routine use of the power would confer on the Director something like a right of appeal against an acquittal. The terms in which and on which the power is conferred suggest to me that Parliament envisaged it usually being exercised when there is a particular reason to do so. The fact that a relevant question involves an important question of law or a question of law of general application, would be a reason (not necessarily decisive) for doing so. That is not to say that there will not be cases in which an aspect of the case itself, or the impact of a decision upon a case, is a reason for the exercise of the powers under s 350. But I consider that the usual basis for the exercise of the power will be the importance of the relevant question.
What I have said is directed mainly at applications for the reservation of a question before verdict.
The power is to be exercised in connection with a criminal trial. The courts have long had power to entertain an appeal against a conviction. But in South Australia there is still no power to entertain an appeal against an acquittal of an offence tried on Information in a superior court. That is generally the position throughout Australia, as far as I am aware. The relevance of this is that an exercise of the power with a view to having a judge reverse a decision that will, or is likely to, lead to the acquittal of a person charged, entrenches upon a fundamental principle that there be no appeal against acquittals. Parliament has allowed that principle to be entrenched upon. It has done so by conferring the power that it has conferred. But a court asked to exercise the power must be mindful, if it is the fact (and it appears to be here) that the Director of Public Prosecutions seeks to reverse a decision that would result in an acquittal. Of course, that will not always be so.
If the court is asked to consider a relevant question, with a view to it giving answers that might result in the reversal of a decision that would otherwise lead to an acquittal, there is no direct interference with the equally fundamental principle against double jeopardy. However, considerations that underpin that principle are again relevant to the exercise of the discretion.
Another relevant factor is the longstanding reluctance by appeal courts to interfere with the progress of a criminal trial, and to fragment it: ... . There are various reasons for this. It is not necessary to enumerate them here. However, anything which contributes to delay is to be avoided if that is practicable. These days courts are making a considerable effort to expedite the criminal process. In most cases, the reservation of questions of law will contribute to delay.
[7] [1999] SASC 260; (1999) 106 A Crim R 423 at [25]-[32].
The relevant principles were more recently summarised and in similar terms by the Court of Criminal Appeal in Application for Reservation of Questions of Law (No 1 of 2009).[8]
There is no doubt that this Court has the power to direct a judge of this Court to reserve a question of law arising before or in the course of a criminal trial.
Since the section was amended in 1995 this Court has repeatedly stated that the power must be exercised with restraint, particularly where the application will interrupt the course of the trial or where the application is made with a view to requiring a trial judge to review a decision already made ... .
The power of this Court to require a question to be reserved is not intended to be a general right of appeal. That right is protected by s 352 of the Act. The power should only be exercised where the issue has some general importance because it will or might arise in other cases ... .
Moreover, it is important when dealing with an application of this nature to consider the utility of the advice which might be given by the Full Court in addressing the issues raised in the questions. The circumstances in which the Full Court would proffer advice on the manner in which a trial judge’s discretion should be exercised on evidential issues, would be exceedingly rare ... .
[citations omitted]
[8] [2009] SASC 12 at [11]-[14].
Brief chronology of events before the Judge
It is helpful to set out by way of further background a brief history of the proceedings before the Judge.
Both respondents were arrested on 19 November 2013. On 15 December 2014, Ms O’Connor SM found a case to answer, and committed the respondents for trial in the District Court, on some but not all of the charges laid.
On 16 January 2015, both respondents applied for a stay of proceedings. They delayed entering a plea on arraignment pending resolution of the stay application. That application was heard by Rice DCJ who dismissed the application on 16 June 2015. Subsequently, the trial of the charges was listed to commence on 4 April 2016 in the District Court.
Prior to trial, the respondent Nissen filed a Rule 49 Notice objecting to the admissibility of the tracking device data. The respondent Vanin filed a similar application. The respondents also issued a subpoena directed to the Commissioner of Police seeking the production of documents relating to the tracking devices. The subpoena was called on before Soulio DCJ, the trial judge, on 23 March 2016. During the course of the argument the question of public interest immunity was raised by the legal representative for the Commissioner as a reason for objecting to the inspection of various documents. Counsel for the Commissioner indicated to the Judge that public interest immunity was claimed over much of the material on the basis that the “disclosure of that information may in fact identify the types of devices SAPOL employ”. It was conceded by the prosecution before the Judge that the information obtained from the tracking devices was “crucially important” to the case against both respondents.
The Judge set the argument on public interest immunity, if there was to be one, for the 4 April 2016. The Judge ordered that affidavits in support of the claim for public interest immunity and any other materials to be relied on to support the claim were to be filed by 1 April 2016. No affidavits were filed and no hearing was held on the 4 April 2016.
The trial commenced on 5 April 2016. Counsel for the Commissioner of Police informed the Court that “the matters had been negotiated between the parties” and that no further production was required from the Commissioner. No counsel, including counsel for the DPP, requested the Judge to determine any question of public interest immunity at that stage.
On 4 April 2016, in response to the Rule 49 application the respondents were served with a declaration of Mr Patrick Miller, a police officer. During the course of the voir dire hearing a further declaration of Mr Miller was served on the respondents in addition to an expert evidence statement of Associate Professor David Bruce. Mr Miller indicated that a claim of public interest immunity was made regarding various aspects of police methodology, including the method, time and location of physically installing or retrieving the device, the method, time and location of retrieving raw data from the device, the make and model of the device and any technical specifications other than the generic GPS engine used within the device.
The respondents maintained their objection, despite receipt of the fresh declarations.
During the course of submissions on the voir dire, the Judge raised again the question of the claim for public interest immunity. The Judge queried with the prosecutor the width of the police witness’s claim for public interest immunity over some of the material. Counsel for the prosecution responded by simply stating that it was “a matter for the Police”. Whilst the claim for public interest immunity was a matter to be raised by the witness, the prosecution was entitled to have the claim determined. They elected at that time not to do so.
On the 11 April 2016, submissions were made as to the admissibility of the tracking data evidence. The prosecution relied on the tendered declarations. The prosecutor relied also upon section 56 of the Evidence Act 1929 (SA). The Judge indicated that he had reservations in accepting that this section provided the answer to the prosecution’s problem. The Judge intimated, during the course of submissions, that the evidence before him was insufficient to establish the accuracy of the tracking device data and that it was likely that the evidence would be excluded. Following the Judge’s intimation, the prosecutor applied for an adjournment until 13 April 2016 to obtain further instructions and produce further evidence. Despite strenuous objections from the respondents, the Judge granted the adjournment.
On 13 and 14 April 2016, further evidence was called. The police officer Mr Miller maintained his claim of public interest immunity. Surprisingly, and notwithstanding the earlier intimation of the Judge, the prosecution did not ask the Judge to determine the question of public interest immunity. Unsurprisingly, the respondents made no application for the question to be determined. They were content to argue the matter on the evidence adduced by the prosecution. The respondents maintained that the evidence of Mr Miller and Professor Bruce did not assist the prosecution to prove, to the appropriate standard, the admissibility of the tracking device data.
The prosecutor submitted that the claims by Miller of public interest immunity did not undermine the ability of the Court to make a finding that the tracking device data was sufficiently accurate and reliable. Thus, the prosecution took the position that it did not need to challenge the claim for public interest immunity because the prosecution was confident that the evidence adduced without any claim of immunity would discharge the Crown’s onus on the challenge to admissibility.
In closing submissions, before the Judge ruled, the prosecution adopted a rather puzzling position. The prosecutor submitted that the Judge should decide the voir dire on the evidence then before his Honour, as, if the prosecution were to obtain a ruling in its favour, there would be no need to press the public interest immunity argument any further. Just prior to his Honour’s ruling, the prosecution again stated that the prosecution accepted that the Judge should not at that stage make a determination on the public interest immunity claim.
The Judge excluded the evidence. The prosecutor then sought an adjournment to obtain instructions. At the next hearing, on 18 April 2016, the prosecutor belatedly requested the Judge to “finalise the public interest immunity issue”. It is difficult to understand the basis for that application; the evidence had already been excluded. Unsurprisingly the respondents opposed the application. They submitted that the prosecution had made a forensic decision not to challenge the claim for public interest immunity and to proceed on the basis of the available evidence. The Judge refused the application.
The state of the evidence before the Judge and the Judge’s reasons
By the time the Judge was called upon to finally rule on the matter, the evidence concerning the process of obtaining the motor vehicle movement tracking information relied on by the prosecution in this case, was in the following state.
(i)A ‘tracking device’ had been attached to each motor vehicle in question.
(ii)Each tracking device contained a number of components.
(iii)One such component was described as an LEA-5 GNSS receiver (‘the LEA receiver’).
(iv)The LEA receiver stores information received from the GPS[9] (USA) navigation system.
[9] Global Positioning System.
(v)There was evidence to the effect that the LEA receiver may not capture the information in its stand alone capacity but rather by way of interaction with other componentry forming part of the tracking device. The extent to which and how this interaction occurred was not disclosed in the evidence.
(vi)The information obtained by the LEA receiver is extracted from the tracking device following its connection by a cable to a computer and by the operation of a computer program.
(vii)The information obtained by the tracking device is encrypted and cannot be altered.
(viii)Only the proprietary software, that is, a computer program supplied with the tracking device by its manufacturer can decrypt the data and generate a readable report.
(ix)Using this computer program, a trained police officer is able to generate a readable report of the information received by the tracking device for nominated times.
(x)Expert evidence from Associate Professor David Bruce, if accepted, would support a finding that the LEA receiver performed accurately and reliably in general use albeit with relatively minor qualifications. This evidence did not address the specific LEA receiver in question in this case.
(xi)The evidence did not identify the particular tracking devices deployed in this case, nor was this disclosed.
(xii)The evidence did not identify the componentry in the tracking device additional to the LEA receiver nor was this disclosed.
(xiii)The evidence did not disclose how each tracking device was installed or removed from either of the cars in question.
(xiv)The evidence did not identify the operating instructions for the tracking device nor were these disclosed.
(xv)The evidence did not identify the computer program which was used to extract the information from the tracking device, nor was this disclosed.
(xvi)The evidence did not identify the manner by which the computer program operated upon the information stored in the tracking device.
(xvii)Whilst there was evidence of the existence of a manufacturer’s operating instruction manual for the computer program, the content of the operating instructions were not in evidence nor disclosed.
(xviii)No evidence was adduced to the effect that the police officer who operated the tracking device in conjunction with the computer program did so in accordance with the manufacturer’s instructions and his training. However, the police officer concerned did give evidence that he had been trained.
(xix)There was no evidence from a qualified expert to the effect that the tracking devices employed as opposed to the LEA receiver were generally accepted as being accurate.
(xx)There was no evidence as to whether the tracking device or any part of it required calibration or, if so, that it had been calibrated.
The prosecution was on notice during the voir dire that any attempt to adduce evidence from the police witnesses on each of the topics referred to in (xi), (xii), (xiii), (xiv), (xv) and (xvii) would be met by the police witness concerned making a claim for public interest immunity. As earlier indicated, the adduction of evidence on these topics was not pressed by any party prior to the Judge’s final ruling. However, the prosecution sought, unsuccessfully, to have the foreshadowed claim by the police for public interest immunity agitated and determined by the Judge after his Honour had completed the voir dire and delivered his ruling. Prior thereto both sides had been content to have the Judge rule on the basis of the evidence that had been adduced and in the absence of any further evidence that might have become available had a challenge to the public interest immunity claim been pressed and determined.
The Judge in his quite extensive reasons for ruling[10] considered, in essence, four bases for the admissibility of the evidence relied on by the prosecution.
[10] R v Nissen & Vanin [2016] SADC 139.
Section 56 of the Evidence Act 1929
Section 56 of the Evidence Act came into force on 4 April 2016. It provides as follows.
56—Evidence produced by processes, machines and other devices
(1)This section applies to a document or thing—
(a) that is produced wholly or partly by a device or process; and
(b) that is tendered by a party to proceedings who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)If a device or process is one that, or is of a kind that, if properly used, will ordinarily produce that outcome, it will be presumed, in the absence of evidence to the contrary, that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Example—
It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
Section 56 is in materially the same terms as section 146 of the uniform Evidence Act 1995 (Cth).
Counsel for the Director submitted that the data extracted from the unidentified tracking device was admissible as to the truth of its content by virtue of section 56(2). The respondents contended that section 56(2) has a far more limited operation. It only gives rise to a presumption that a document or thing produced by the device in question properly reflects or states the content of the information contained, as it were, within the device in question but provides no assistance as to the veracity of that information. The Judge rejected the prosecution contention and in so doing relied on what his Honour found to be the plain reading of the section and the approach taken by the New South Wales Court of Appeal in North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd[11] with reference to the cognate provision applicable in New South Wales. In that case, Beazley JA (with whose reasons Macfarlan and Whealy JJA agreed) observed.[12]
Section 146 is directed to evidence produced by the application of a mechanical or technological process. Photocopied documents, computer-generated material and material generated from data stored in a computer are typical examples. Section 146(2) is not directed to the underlying accuracy of the information contained in a document or record that is produced in this way. For example, s 146(2) has nothing to say about the accuracy of a statement in a photocopied document that AU$100 was worth US$96. Rather, s 146(2) is a means whereby, on this example, a photocopy of a document containing such information may be received into evidence. It follows that, in my opinion, the appellant’s s 146(2) submission fails.
[11] North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; (2012) 83 NSWLR 710.
[12] At [63].
Section 53 of the Evidence Act 1929
The prosecution submitted in the alternative that the print out of the data obtained from the tracking device was admissible as a business record pursuant to the terms of section 53 of the Evidence Act. This was rejected by the Judge. His Honour was not persuaded that the print out satisfied the requirements of a business record in the circumstances. In any event, the Judge took the view that he should be precluded from admitting the evidence for the truth of its contents after having regard to the various considerations in subsections 53(2) and (3). His Honour said this.[13]
Having regard to my observations as to the lack of evidence as to the source from which the printout is produced, and the safeguards, if any, that had been taken to ensure its accuracy, amongst other factors referred to in s 53, I would regard myself as precluded from admitting the printout under that section.
[13] R v Nissen & Vanin [2016] SADC 139 at [93].
Notorious scientific instrument
A third basis upon which the prosecution sought the admission of the information obtained from the tracking devices was by way of contending that the tracking device was a notorious scientific instrument as that term has been described and explained in, for example, Mehesz v Redman (No 2).[14] It was contended by counsel that GPS receivers are located in countless electronic devices and have frequently been used in covert tracking devices deployed by the South Australian Police and other agencies around Australia and the world. After reviewing the evidence available, the Judge rejected the contention that the undisclosed tracking device in question fell into the category of a notorious scientific instrument such that the information contained therein and ultimately extracted could be presumed to be accurate and reliable.
The reliability of the product of the tracking device having been established on the evidence in accordance with common law principles
[14] Mehesz v Redmand (No 2) (1980) 26 SASR 244.
The primary submission on behalf of the prosecution was that the tracking device was within a class of scientific instruments generally accepted by experts as being accurate. It was submitted that the evidence of the police officer who was responsible for testing, installing and extracting the data from the tracking device. together with the expert evidence adduced to the effect that the LEA receiver contained within the tracking device was generally understood to be accurate and reliable, was sufficient to prove the product of the tracking device to be accurate and reliable. In addition, the prosecution pointed to other circumstantial evidence in support of the accuracy of the particular tracking device used. Essentially, this comprised examples of occasions when a vehicle to which the tracking device had been attached had been observed to follow a route or attend at a destination that was consistent with the information or product obtained from the tracking device with respect thereto.
The Judge assessed in quite some detail the various aspects of evidence relied upon by the prosecution in this respect and ultimately found that it was insufficient to establish the admissibility of the product of the tracking devices relied on by the prosecution.
Consideration
The state of the evidence before the Judge at the time his Honour finally ruled was incomplete in a number of potentially important respects, in particular, as to the matters referred to above at (xi), (xii), (xiii), (xiv), (xv) and (xvii). In the absence of evidence on a number of these topics, such as in particular (xi), (xii), (xiv) and (xv), a factual basis suitable to permit answers of general application with respect to each of the questions 2 to 5 as finally proposed would not be possible.
In other words, any answers provided on the present state of the evidence, even if they could be safely arrived at which remains doubtful, would remain entirely specific to this case. The questions posed could only have a more general application in the event that the public immunity question had been determined, one way or the other, with respect to a number of the evidence topics left incomplete. Without this, we are not persuaded that a suitable factual basis for each question could be identified by the Judge.
For this reason, any potential utility of a referral of proposed questions 2 to 5 would only emerge if proposed question 1 were first referred and answered. As such, the steps that would need to be undertaken are likely to be those identified by the respondent, Nissen, during his submissions as follows.
(a)Decision by the Full Court to require the reservation of question 1;
(b)A process of reservation and referral by the learned trial Judge;
(c)Submissions before the Full Court on the answer to question 1;
(d)Judgment by the Full Court answering question 1 “yes”;
(e)Further processes before the learned trial Judge including the following:
i. recall reasons regarding admissibility and re-open the voir dire
ii. invite further evidence in respect of any claims for public interest immunity (bearing in mind that claims were not pressed originally and no evidence or submissions heard with respect thereto)
iii. permit submissions regarding any claims for public interest immunity
iv. rule on the claims for public interest immunity
v. if the claims were not upheld, permit the parties to consider whether to seek to adduce further evidence on the voir dire including responsive expert evidence
vi. hear further submissions on the voir dire in light of any additional evidence
vii. rule again on the voir dire
(f)If the result of the voir dire were to be that the GPS evidence should be adduced then potentially there will be an adjournment of the trial;
(g) If the result of the voir dire were to remain the same there would be a further potential application for a referral of questions and the fragmentation of and delay involved with the trial would continue.
To approach the matter in this way would lead to significant fragmentation of the trial process and unacceptable delay.
A further consideration tending against any preparedness to engage in such a process of delay and fragmentation arises from the circumstances in which the matter was dealt with by the Judge, as earlier briefly identified. Given the procedure pursued by the prosecution, the various opportunities the Judge provided in order to allow the prosecution to put its best case and the fact that the Judge was not pressed to hear and determine any public interest immunity claims until after he had finally ruled on the voir dire, the prospect of the prosecution receiving a favourable answer to question 1 must be seen as guarded at best.
In short, and given the manner by which the evidence was adduced below, it is most unlikely that a matter of general importance can be ventilated through the referral process in this case. The matter plainly is important with respect to the resolution of the case itself. The prosecution, as we earlier recognised, concerns offending which if proved was very serious. Further, in the absence of obtaining a determination through the referral procedure with the effect of overturning the Judge’s ruling, the prosecution may well be unable to proceed with the trial in a way which will secure a right to seek permission to appeal the ruling. Nevertheless, the lack of general significance and the substantive delay and fragmentation that necessarily will result persuades us that the application to refer question 1 should be refused.
Even if questions 2 to 5 were to be referred in the absence of question 1 being pursued, there still would be significant fragmentation and delay to an extent that, bearing in mind that any answers would be specific only to this case, would be unacceptable.
It is not the role of this Court, at this stage, to form a concluded view as to the merits of the prosecution case with respect to each of questions 2 to 5. However, on our consideration of the extensive evidence and submissions that were before the Judge, the prospects of the prosecution succeeding in obtaining favourable answers to any of questions 2 to 5 (in the absence of question 1 being resolved in a way that would permit further evidence to be adduced) is also to be seen as guarded at best. This is a consideration, by no means conclusive, when weighing up whether or not to permit the further fragmentation of the trial and delay that necessarily would result from directing the Judge to state a case.
The fact that the prosecution failed before the Judge to establish the admissibility of the tracking device evidence in this case does not mean that it necessarily will fail in another case. It will be open to the prosecution to prove such evidence in an appropriate way notwithstanding the ruling of the Judge in this case which was based solely on the evidence adduced before his Honour.[15] As such, and leaving aside the complication arising in this case with respect to the public interest immunity issue, the other questions propounded are not of sufficient general importance to warrant providing the prosecution with what, in effect, is no more than an opportunity to appeal the Judge’s ruling in circumstances where no appeal under section 352 or otherwise lies.
[15] No doubt the prosecution may actively seek to test the claim for public interest immunity if the occasion arises.
We dismiss the application.
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