Commissioner of Police v Walker

Case •

[2023] NSWSC 539

•

24 May 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Commissioner of Police v Walker [2023] NSWSC 539
Hearing dates: 27 April 2023
Date of orders: 24 May 2023
Decision date: 24 May 2023
Jurisdiction:Common Law
Before: McNaughton J
Decision:

The Court makes the following orders:

(1) An order in the nature of certiorari quashing the Refusal Decision.

(2) An order in the nature of mandamus remitting the matter to the Local Court of New South Wales to deal with the plaintiff’s application for a Restricted Retention Order according to law.

Catchwords:

APPEAL – appeal from Local Court – whether Local Court has the implied power to make an order restricting an accused’s ability to retain a brief of evidence – consideration of jurisdictional error – safety of witnesses – Local Court has implied power to make a Restricted Retention Order

STATUTORY INTERPRETATION – whether confidential information in a brief of evidence can give rise to an “obligation” pursuant to section 61(2) of the Criminal Procedure Act 1986 (NSW) – whether “obligation” includes the equitable obligation of confidence – section 61 not in mandatory terms which can only be departed from if specified in Criminal Procedure Act 1986 (NSW)

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3, Div 1A

Criminal Procedure Act 1986 (NSW) Ch 6, Pts 2, 2A, 2B, ss 3, 55, 56, 61, 64, 72, 91

Director of Public Prosecutions Act 1986 (NSW) s 15A

Interpretation Act 1987 (NSW) ss 33, 34

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Local Courts Act 1982 (NSW) s 26

Local Court Act 2007 (NSW) ss 9, 28

Supreme Court Act 1970 (NSW) ss 23, 69

Supreme Court Rules 1970 (NSW) Pt 51B, rr 5, 9

Cases Cited:

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1

The Attorney-General v Walker (1849) 3 Exch 242; (1849)154 ER 833

Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27

BUSB v The Queen (2011) 80 NSWLR 170; [2011] NSWCCA 39

Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366

Director of Public Prosecutions (NSW) v Earl Burns [2010] NSWCA 265

Ex parte The Queensland Law Society Inc [1984] 1 Qd R 166

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565

HT v The Queen (2019) 269 CLR 403; [2019] HCA 40

Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46

Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Moevao v Department of Labour (1981) 1 NZLR 464

Julian Ronald Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50

Parsons v Martin (1984) 5 FCR 235; [1984] FCA 408

Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Qaumi(AVL) [2015] NSWSC 1711

Re Aguish; ex parte Farrow Mortgage Services Pty Ltd (in liq) (1994) 126 ALR 704

Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522

TheCommonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52

Category:Principal judgment
Parties: Commissioner of Police (Plaintiff)
Gregory John Walker (First Defendant)
Local Court of NSW (Second Defendant)
Representation:

Counsel:
J Emmett SC with R Lee (Plaintiff)
C Parkin (First Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
LawyersCorp Pty Ltd (First Defendant)
Submitting Appearance (Second Defendant)
File Number(s): 2023/96951
Publication restriction: Non-publication and suppression orders are made in accordance with Prayers 1 to 4 of the Notice of Motion dated 26 April 2023.
 Decision under appeal 
Court or tribunal:
Local Court of NSW
Jurisdiction:
Criminal
Date of Decision:
10 March 2023
Before:
Magistrate M Maher
File Number(s):
2022/194824

JUDGMENT

  1. Mr Gregory John Walker (“the first defendant”) is charged with murder and a number of related offences alleged to have been committed in April 1998 around the area of Waterloo. The deceased is Arthur Haines (who was also known by the name Arthur Szabo) who tragically died at the age of 13 from injuries received in a house fire alleged to have been deliberately caused by the first defendant following an escalating neighbourhood dispute.

  2. The first defendant is in custody awaiting the finalisation of committal proceedings in the Local Court of New South Wales (“the second defendant”) involving these charges. He is represented by a firm of solicitors. Ordinarily, in accordance with the Criminal Procedure Act 1986 (NSW) (“CPA”), it can be assumed that a person in the position of the first defendant would have the brief of evidence served upon their solicitors, who would then (likely) make a copy of the brief available to that person (whether they be in custody or not) so that they are able to receive that person’s instructions. In this case, the Commissioner of Police, NSW Police Force (“the plaintiff”) has requested a magistrate restrict the first defendant’s ability to retain a copy of parts of the brief of evidence in the context of the committal proceedings. Such an order (originally granted by one magistrate but revoked by a subsequent magistrate) has been variously called the “restricted retention order”, the “restricted access order” or the “brief withholding order”. It will be called hereafter the “Restricted Retention Order” or “RRO”.

  3. The magistrate who revoked the RRO was persuaded by the first defendant that such an order was beyond the power (including implied power) of a Local Court magistrate (“the Refusal Decision”).

  4. The plaintiff appeals against the Refusal Decision by the magistrate, in the first instance, on the basis of jurisdictional error pursuant to s 69 of the Supreme Court Act 1970 (NSW) (having abandoned at the hearing of the appeal another ground originally relied upon pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”)). The plaintiff seeks an order quashing the Refusal Decision and an order, in the nature of mandamus, that the Local Court deal with the plaintiff’s application for an RRO according to law.

  5. If the jurisdictional error ground fails, the plaintiff seeks an order made by this Court pursuant to s 23 of the Supreme Court Act. If that course is taken, a further hearing with additional (confidential) evidence is required.

  6. Given the first defendant is in custody, and the matter cannot proceed without a decision in relation to this issue, this matter has some real urgency.

  7. It is noted that the Office of the Director of Public Prosecutions is not a party to these proceedings, although a representative has been present both at the Local Court and at this Court on a watching brief.

Does the Local Court have an implied power to make the Restricted Retention Order?

  1. On 13 October 2022, the plaintiff sought and obtained an interim RRO in the committal proceedings (alongside a range of suppression, pseudonym, and closed court orders) to the following effect:

“The defendant shall not be permitted to retain a copy of:

a. the documents identified by the Crown Solicitor’s Office (acting for the Commissioner) and marked in the brief of evidence as being ‘subject to restricted access order (legal representatives only)’;

b. any document that reveals or tends to reveal the true identities of Witness B, C and D as witnesses; and

c. the evidence of Witness B, C and D, including statements, electronic or hardcopy, transcripts or audio recordings.”

(Emphasis in original.)

  1. When the application for the order eventually came on for argument to determine whether final orders should be made, the first defendant disputed the power of the Local Court to make the RRO. On 10 March 2023, Maher LCM concluded that the Local Court did not have such implied power (the Refusal Decision) and made an order that the RRO should expire at 5:00pm on 20 March 2023. The other orders (the suppression, pseudonym, and closed court orders) were essentially continued. An appeal was instituted to this Court against the Refusal Decision.

The evidence

  1. The evidence and other material before this Court were tendered or otherwise provided by way of an open court book prepared by the plaintiff and filed on 24 April 2023 and contained the following:

  1. Summons seeking leave to appeal dated 24 March 2023

  2. Statement required by the Supreme Court Rules 1970 (NSW) Pt 51B r 5(7) dated 31 March 2023

  3. Notice of Motion filed by the first defendant dated 3 April 2023

  4. Affidavit of Joseph Giang-Nguyen filed by the first defendant dated 31 March 2023

  5. Affidavit of Maddison Lee Passarelli filed by the plaintiff dated 3 April 2023

  6. Notice of Motion filed by the plaintiff seeking leave to amend summons dated 12 April 2023

  7. Affidavit of Camille Laker filed by the plaintiff dated 12 April 2023

  8. Affidavit of Maddison Lee Passarelli required by the Supreme Court Rules Pt 51B r 9 filed by the plaintiff dated 24 April 2023.

  9. Plaintiff’s outline of submissions dated 12 April 2023

  10. First defendant’s outline of submissions dated 21 April 2023

  11. Joint chronology dated 24 April 2023

  12. Application to the Local Court dated 12 October 2022

  13. Submissions to the Local Court filed by the plaintiff dated 15 November 2022

  14. Open affidavit of Scott Whyte APM tendered by the plaintiff to the Local Court dated 22 November 2022

  15. Three statements of Witness B tendered at Local Court hearing by the plaintiff

  16. Three statements of Witness C tendered at Local Court hearing by the plaintiff

  17. Two statements of Witness D tendered at Local Court hearing by the plaintiff

  18. Table of orders sought by and prepared for Maher LCM dated 24 February 2023

  19. Orders made by Maher LCM dated 10 March 2023

  20. Transcript of closed court hearing before Maher LCM dated 28 February 2023

  21. Transcript of closed court judgment before Maher LCM dated 10 March 2023

  22. Plaintiff’s outline of submissions in reply to this Court dated 26 April 2023

  23. Transcript of closed court hearing before Maher LCM dated 20 February 2023.

  1. Items 15, 16, 17, 20, 21 and 23 are subject to the orders I made in accordance with prayers 1 to 4 of the Notice of Motion dated 26 April 2023. I note that there has also been an undertaking in relation to prayer 5 of that Notice of Motion from the first defendant.

  2. The confidential affidavit which was before Maher LCM was not before this Court. The plaintiff contends that for the purposes of determining whether or not the Local Court has an implied power to make an RRO, it is not necessary to have the detail contained in the confidential affidavit. The first defendant did not object to the Court determining the jurisdictional error question without the confidential affidavit. It is clear from the material that is before the Court that the plaintiff holds serious concerns for the safety of Witnesses B, C and D. It was noted by the magistrate that the concern for the safety of certain witnesses was said to be in the extreme category. For the purposes of deciding the issue for determination, I am of the view that there is sufficient material before the Court.

Submissions for the plaintiff

  1. The plaintiff contends that s 61 of the CPA is not a fetter on the Local Court’s power to make the RRO. Once the brief of evidence is served on the first defendant’s legal representative, service of the brief of evidence has been effected for the purposes of s 61 of the CPA.

  2. Section 61 of the CPA provides as follows:

(1) The prosecutor must, after the commencement of committal proceedings and on or before any day specified by order by the Magistrate for that purpose, serve or cause to be served on the accused person a brief of evidence relating to each offence the subject of the proceedings.

(2) This Division is subject to, and does not affect the operation of, section 15A of the Director of Public Prosecutions Act 1986 or any other law or obligation relating to the provision of material to an accused person by a prosecutor.

Note –

Examples of such a law are laws about privilege and immunity in relation to evidence.

  1. An accused person is defined in s 3 of the CPA as follows:

accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person.

  1. Despite the plaintiff’s contention that once a brief is served on an accused’s person’s legal representative, service for that brief of evidence has been effected for the purposes of s 61(1) of the CPA, the plaintiff accepts “that is not the end of the matter”. The plaintiff submits that there is a “statutory expectation that, unless the qualification in s 61(2) applies, the legal representative will be free to show the brief of evidence to their client, the accused”. The plaintiff further contends that the definition of “accused person” means the RRO is consistent with the express terms of s 61(1) being complied with.

  2. The plaintiff further notes that a requirement to serve a brief of evidence does not mean that a person is entitled to carry that brief with them all the time. Custodial conditions inevitably mean that there will be times when an inmate cannot have their brief with them. It is also contended that there are many other circumstances in which an accused person’s access to a brief may properly be restricted or limited by some other doctrine or regime.

  3. The plaintiff also points to the clear principles underpinning the construction of words of a statute including that “a court construing a statutory provision must strive to give meaning to every word of the provision” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; [1998] HCA 28 (“Project Blue Sky”) (McHugh, Gummow, Kirby and Hayne JJ)). The terms “any other law” and “obligation” in s 61(2) of the CPA have different meanings. “Obligation” is not defined in the CPA but must go beyond “any other law”. The marginal notes support this contention. No examples within the legislative notes are given of an “obligation”.

  4. Although not argued before the Local Court in terms which expressly referred to an equitable obligation of confidence, the word “obligation” includes, the plaintiff contends, such an obligation which arises in relation to confidential information held by the government as follows:

  1. Governments are required to act in the public interest. Public and not private interest is the criterion by which equity determines whether it will protect information which a government or governmental body claims is confidential. [1]

  2. When equity protects government information, it looks at the matter through different spectacles. It acts in the public interest. Deciding whether government information should be protected requires consideration of competing public considerations and may be “finely balanced”. [2]

    1. Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191 (McHugh JA).

    2. The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51-52; [1980] HCA 44 (“John Fairfax & Sons”) (Mason J).

  1. The plaintiff further submits that the equitable obligation of confidence and the (narrower) doctrine of public interest immunity share a significant consistency, albeit having different jurisprudential sources.

  2. A fundamental premise of the Commissioner’s application (albeit not argued in these terms before the Local Court) was that “the information was confidential, reflected in the interlocutory orders made below and the clear labelling of certain evidence and submissions as ‘confidential’”. One of the overarching issues before the Local Court was the confidentiality of the identity of Witnesses B, C and D as witnesses from persons other than the first defendant. It was noted that the magistrate questioned the security of the brief of evidence if it were to be left with the first defendant in a correctional centre.

  3. The plaintiff submitted that a case might readily be envisaged in which patents or trade secrets are contained within a brief of evidence and that service on an accused person, who is also a competitor, could lead to the very mischief that equity would otherwise prevent. [3] If this proposition was accepted, it must follow that this would also apply to government information, albeit that the Court sees the equitable obligation through different spectacles (John Fairfax & Sons at 51 (Mason J)).

    3. Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 (“Gypsy Jokers”).

  4. That there may be a balancing exercise required by a magistrate in weighing protected information in the public interest pursuant to an equitable obligation of confidence on the one hand and affording appropriate degrees of natural justice on the other, simply means that the Local Court is controlling its processes, which is quintessentially a matter for the Local Court. This does not detract from the confidentiality of the information being capable of giving rise to an “obligation” for the purposes of s 61(2) of the CPA.

  5. The plaintiff then contended that once it is accepted that an obligation of confidence is sufficient to constitute an “obligation” for the purposes of s 61(2) of the CPA, and the Commissioner’s application was premised on maintaining such confidentiality (albeit not framed in terms of an equitable obligation), the next step is to consider whether the Local Court has implied powers to create a tailored order such as the RRO.

  6. The legislative regime as a whole must be considered, [4] keeping in mind that an inferior court of record created by statute can have no powers, jurisdictions or authorities, other than those authorised by enabling legislation. [5] It must, though, also be kept in mind that every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.

    4. Project Blue Sky [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).

    5. John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 (McHugh JA with Glass JA agreeing at 467).

  7. Jurisdiction of committal proceedings is conferred upon the Local Court by s 9(c) of the Local Court Act 2007 (NSW) and Pt 2 of Ch 3 of the CPA. Section 56(1) of the CPA makes it clear that committal proceedings are to be conducted by a magistrate, indicating that the magistrate is to have control of the committal proceedings. The legislative regime includes s 28 of the Local Court Act which expressly empowers the Court to “give directions with respect to any aspect of practice or procedure not provided for” under other legislation.

  8. The plaintiff referred to HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 (“HT”) where tailoring orders (of which the RRO is said to be one) were discussed. A distinction was drawn by the High Court between the doctrine of public interest immunity which is concerned with the exclusion of documents from evidence, and tailoring orders, where the doctrine of public interest immunity does not apply. In civil contexts (and in some criminal contexts concerning assistance in the context of sentencing), tailoring orders include cases where material may be disclosed to one or more of the party’s legal representatives and not to the party. The plaintiff contends that HT makes it apparent that:

  1. The range of tailored orders which may be made are not limited, but the balance to be drawn is case specific;

  2. In terms of the examples, an RRO is an order which is theoretically available to a court.

  1. The plaintiff submits that the Local Court has an implied power, where necessary, to make an RRO. Without such a power, the plaintiff contends a situation may arise whereby a Court Attendance Notice is not issued, or is withdrawn, because no accommodation for the safety of a prospective prosecution witness could be made. Another example given was that a prosecution may not be able to rely on probative material because of unresolved safety concerns. Prejudice could be caused to a defendant. A lack of flexibility could lead to more material being excluded on the ground of public interest immunity. The plaintiff points to cases involving protection of witnesses, similar to the interests in protecting informers and undercover police operatives, [6] not only in the context of public interest immunity but also for purposes other than public interest immunity claims. [7]

    6. Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84.

    7. R v Qaumi (AVL) [2015] NSWSC 1711 at [14].

  2. The plaintiff drew the Court’s attention to s 91 of the CPA which gives a magistrate an express power to dispense with specified requirements in relation to statements or exhibits including the service of documents on the accused person (s 91(1)(a)) and the provision to the accused person of a reasonable opportunity to inspect the proposed exhibits (s 91(1)(b)), but – importantly – only on an application by the accused person or with the consent of the accused person (s 91(2)).

  3. The plaintiff acknowledged that the Court “would not lightly discern an implied power that enables the Magistrate to dispense with these requirements in circumstances where the accused person has not made the application or consented”. The plaintiff further submits, however, that s 91 must be read alongside s 61(2), which:

“plainly contemplates the existence of an anterior obligation that would exclude the operation of s. 61(1). If it is accepted that this includes an obligation of confidence in respect of information held by police or prosecuting authorities, then ss. 61 and 91 operate coherently.”

  1. The plaintiff also pointed to s 64 of the CPA as being consistent with its approach. Section 64 permits the prosecutor to exclude a copy of a thing provided s 64(2) is complied with. Section 64 permits the prosecutor to exclude unilaterally, provided that the s 64(2) notice is served. By contrast, the implied power on which the plaintiff relies is only engaged if an application is made and the Local Court is persuaded to exercise the power.

  2. Finally, the plaintiff pointed to the lack of clarity since HT confirmed that tailoring orders, such as RROs, should not be regarded as giving effect to public interest immunity, especially in relation to inferior courts and the extent of their implied powers. The plaintiff calls in aid Mason P’s comments in Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366 (“Nationwide News”) at [29]-[30] which, of course, precedes HT. The relevant passages read as follows:

“This now well established proposition addresses the balancing test required at common law with regard to an application to withhold evidence or other information from production to the court or to a litigant party on the ground of public interest immunity. The interests of justice in the particular case, usually represented by the litigant’s need for material in support of a claim or defence, may require to be balanced against an identified and established aspect of the public interest said to justify non-production.

Legitimate claims to confidentiality, including those touching areas attracting public interest immunity, also inform aspects of court procedures. Courts have powers necessary to ensure that their procedures, including procedures normally conducted openly, do not destroy the very interests and rights that are at stake in litigation or are affected by its process.”

  1. The plaintiff contends that if it is “correct that, following HT, the considerations identified by Mason P [above] must inform the scope of an ‘obligation’ under s. 61(2), this […] warrants the appellate attention of this Court”, and the extent of the Local Court’s implied powers in this respect should be clarified. This latter argument was made in aid of a grant of leave to appeal in relation to the abandoned ground pursuant to the CAR Act for which leave to appeal was required.

Submissions for the first defendant

  1. The first defendant contends that s 61 is in mandatory terms and the exceptions to the requirement to serve a brief of evidence on an accused person are carefully prescribed in the CPA. The exceptions are:

  1. Where it is impossible or impractical to copy a thing that must be served or the accused agrees to inspect the thing: s 64(1).

  2. By order of a magistrate, but only on the application of the accused or with the accused’s consent: s 91.

  3. Where the evidence is “sensitive evidence” or “terrorism evidence” such that it falls within the special regimes established by Pts 2A or 2B of Ch 6 of the CPA headed “Evidentiary Matters”.

  1. The first defendant contends that s 91 is critical as it indicates Parliament has turned its mind to the circumstances in which it is appropriate to dispense with the requirements for service of documents on an accused person and has made a policy decision that that should only occur at the desire of, or with the acquiescence of, the accused.

  2. Further, the first defendant argues that Pts 2A and 2B are critical as they establish regimes under which physical copies of particular evidence are to be withheld from the accused but made available for inspection. The first defendant submits that the RRO seeks to “replicate the substantive effect of these statutory regimes in circumstances where Parliament has not seen fit to do so.”

  3. The first defendant submits the above provisions constitute a code relating to brief service, subject only to the matters in s 61(2).

  4. Whilst the first defendant accepts the statements of principle contended for by the plaintiff in relation to implied powers, he submits:

“However, it is trite that a power may not be implied to dispense with a requirement imposed by statute: see, eg, Re Aguish; ex parte Farrow Mortgage Services Pty Ltd (in liq) (1994) 126 ALR 704 at 706 (citing Wardley Australia Ltd v [The State of] Western Australia (1992) 175 CLR 514 at 561).”

  1. The first defendant submits that the reliance on the definition of “accused person” is misplaced. He points to a clear distinction between inspection and provision to, or service of, brief items. For example, it is argued that if a prosecutor were to serve brief material on the accused’s solicitor on the condition that it not be shown to the accused or otherwise provided to him, there could be no sensible argument that the prosecutor would be complying with their obligations under the CPA. Just because the practical conditions of a person in custody mean they are not able to access their brief at particular times does not derogate from the substantive content of the obligation imposed by s 61(1). He goes on to submit:

“The other ‘doctrines’ and ‘regimes’ referred to are not identified. For a legal ‘doctrine’ or ‘regime’ to operate so as to relieve the prosecutor of the statutory duty to serve the brief imposed by section 61(1), reliance would need to be placed on CPA s 61(2) or the terms of another statutory provision that overrode section 61(1) expressly or by necessary implication.”

  1. The first defendant contends that “obligation” in s 61(2) does not, contrary to the plaintiff’s submissions, include an obligation of confidence for a number of reasons. First, to the extent that there is any divergence between the requirements of Div 3 of Pt 2 of the CPA and another law or obligation “relating to the provision of material to an accused person by a prosecutor”, the Division operates subject to and does not derogate from those other laws and obligations.

  2. Second, the relevant law or obligation must be one “relating to the provision of material to an accused person by a prosecutor”. An “obligation of confidence” being one that is owed by police to a witness or prospective witness could not “on any view” be covered by the sub-section. The first defendant contends “[i]f that were so, prosecutors would be entitled to withhold from service any evidence provided to them in confidence from an accused person”.

  3. Third, the first defendant contends that s 61(2) is “self-executing”, and as such there is no need for an order.

  4. Fourth, the first defendant takes issue with the example given by the plaintiff (above) relating to patent or trade secret cases and draws a distinction between the Gypsy Jokers case where there was a statutory provision restricting the provision of information to a person who would otherwise have the right to see it, and the situation here. Further, he noted that the hypothetical example pointed to by Crennan J in Gypsy Jokers concerned a civil case operating in a very different legal context. Here whilst procedural fairness is at the heart of the complaint, “the true impediment to implication of a power is the fact that it would be contrary to a specific statutory obligation compelling disclosure”. The first defendant further submits that questions of fairness to the accused in the criminal process override equitable obligations of confidence.

  5. The first defendant further takes issue with any reliance on HT, submitting that that case concerned procedural fairness with respect to the confidentiality of evidence which is a matter which falls within the province of the Court’s power to control its own processes and which is generally not governed by statute. The present case, on the other hand, is concerned with an application by the plaintiff for a “tailoring order” which “cuts across an express statutory obligation”.

  6. The first defendant submits that the plaintiff is overstating the significance of the consequences of the Local Court not having power to make an RRO – making it “clear” (it is submitted - at least at this point in his argument) that the order only seeks to prevent the first defendant from “retaining copies” – and does not seek to withhold the contents of the documents per se. He points to other means available to the Court to restrict the material by way of pseudonym orders and suppression orders, and also notes that there was no suggestion the first defendant himself is not aware of the identities of the witnesses in question. Accordingly, there is no proper basis for the plaintiff’s concern.

  7. The first defendant then submits that even if there were such a power, it has not been demonstrated that such an order is necessary to secure the proper administration of justice in the proceedings. I note, however, that this argument is not for determination in this part of the proceedings before this Court – as it goes to the exercise of the power, rather than its existence.

  8. Finally, in oral submissions, it was emphasised how “unworkable” an RRO would be if an accused was self-represented.

Consideration

  1. Given the need to provide this judgment in a timely fashion, consideration will necessarily be briefer than in other circumstances.

  2. The issue for determination is whether the magistrate erred in holding there was no implied power in the Local Court to make an order which has the effect of preventing an accused person from retaining particular parts of a brief of evidence in an indictable matter during the committal process. It is agreed that the question involves the consideration of jurisdictional error.

  3. The plaintiff is not arguing the Local Court has an implied power to prevent entirely an accused from seeing any or all of the brief of evidence against him or her. In many instances in the course of submissions, the first defendant overstated the position being contended for by the plaintiff, exemplified by characterising the order sought by the plaintiff as a “brief withholding order”, when no part of the brief is in fact sought to be withheld from the first defendant.

  4. Some basic observations can be made. The justice system in New South Wales has developed over many centuries. It is a system of many constituent parts. So far as criminal matters are concerned, the starting point for entering the justice system is the Local Court. All criminal matters – be they comparatively trivial or of the utmost seriousness – are commenced in the Local Court (subject to very limited exceptions which are not relevant to this case).

  5. If an accused maintains a plea of not guilty and goes to trial for murder in NSW, following committal for trial (a process which occurs in the Local Court), his or her trial will be heard in this Court, a superior Court with inherent powers. The issue for determination in this matter is therefore confined to a preliminary (albeit important) part of the criminal process occurring in the Local Court. Its importance is perhaps enhanced when one notes that the Early Appropriate Guilty Pleas scheme in this State makes the consideration of the evidence in the brief critical in informing an appropriate course of action at the Local Court stage. [8]

    8. The Early Appropriate Guilty Pleas scheme was introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), which amended CPA Div 2 headed “Committal proceedings generally” and Div 3 headed “Disclosure of evidence”. The sentencing discounts for guilty pleas to indictable offences can be found in Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 Div 1A.

  6. It is also important to acknowledge that “interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society”: Julian Ronald Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [90] (Heydon J) citing Jago v District Court (NSW) (1989) 168 CLR 23 at 49-50; [1989] HCA 46 (“Jago”) (Brennan J).

  7. The confined nature of the jurisdiction of the Local Court is well known. As stated in the well-known passage from Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 at [21] and [23] (“Grassby”) (Dawson J):

“[…] a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise […] Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. 

[…]

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”

  1. It can also be observed that s 28 of the Local Court Act provides that the Local Court can “give directions with respect to any aspect of practice or procedure not provided for” under other legislation. At the time of Grassby there was a section to similar effect in the now-repealed Local Courts Act 1982 (NSW) (s 26).

  2. The evidence before the Court clearly shows that the RRO was sought in order to mitigate the risks involving the safety of certain witnesses in this matter. It is trite to observe that at the more serious end of the criminal spectrum of cases, of which this is one, considerations which involve the safety of witnesses will arise from time to time. The problem is neither novel nor unique. Sometimes those considerations will be regarded as “extreme” as observed by the magistrate in this case.

  3. As it is fair to assume that the physical safety of witnesses in certain serious matters is a longstanding issue faced by the criminal justice system, it is also fair to assume that various practical steps are regularly taken by the authorities, including the plaintiff, to ensure the safety of witnesses. No doubt some of those steps sometimes include placing a witness within a witness protection program. Sometimes less formal but practical steps are no doubt taken which may involve a witness voluntarily moving locations, or even simply increasing their home protection, regularly changing their daily routine, and the like.

  4. Legislative provisions such as the Court Suppression and Non-publication Orders Act 2010 (NSW) also provide mechanisms for courts, in certain circumstances, to restrict or supress information, including for reasons relating to the safety of witnesses.

  5. The issue remains, however, that if none of these steps are to be regarded as sufficient to minimise the risks of danger to a witness in for example, a murder case, does the Local Court, an “inferior court with limited jurisdiction”, have implied power to make an order in relation to the service of the brief of evidence which has the effect of regulating or restricting, in practice, an accused’s access to portions of the evidence such as to assist in mitigating the risk against witnesses whilst still providing an accused with some access to that evidence.

  6. The question is whether it is “necessary” for the “effective exercise” of the Local Court’s jurisdiction to imply the power to make the RRO (Nationwide News; Grassby) or as contended for by the first defendant, is it clear from the structure of the legislative regime that such an order would cut across an express statutory obligation.

  7. When considering the extent of the implied powers of the District Court, Spigelman CJ set out the following important principles in BUSB v The Queen (2011) 80 NSWLR 170; [2011] NSWCCA 39 at [25]-[34] as follows:

“The most frequently cited test in Australian jurisprudence for identifying an implied power is that propounded by Dawson J, with whom other members of the Court agreed, in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at [21]:

‘Every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ...’

Dawson J also identified at [23] the limits of permissible implication as follows:

‘Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from statutory provision conferring particular jurisdiction”.’

An implied power must relate to either the exercise of the court's jurisdiction or to the exercise of its powers. (See, eg, Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at [33]-[40], referred to with approval in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at [26] and in turn by joint judgments in ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [64] and Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [5].)

The implied powers of a court are directed to preserving the ability of the court to perform its functions in the administration of justice and, in this respect, the administration of justice is to be regarded as a ‘continuous process not confined to the determination of the particular case’ (Moevao v Department of Labour (1981) 1 NZLR 464 at 481 per Richardson J, in a passage frequently cited with approval in Australian courts. See the references set out in John Fairfax v District Court at [56].)

The judgment in Grassby affirmed (at [21], [23]) that the test is one of necessary implication. (See also the authorities referred to in John Fairfax v District Court at [35]-[36].)

In Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, the High Court applied the Grassby test to the District Court of New South Wales. The majority joint judgment of Gaudron, Gummow and Callinan JJ said at [51]:

‘The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.’

The last internal quotation is from State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452.

The dictum of Pollock CB approved in Pelechowski is:

‘The word “necessary” does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case.’ (Attorney General v Walker (1849) 3 Ex 242 at 255; 154 ER 833 at 838.)

However, a test of necessity cannot be stretched to encompass what is merely desirable or useful. Accordingly, in Pelechowski the High Court held that the order made by the District Court was more extensive than was warranted by a test of necessity. Similarly, an ‘advance ruling’ on a hypothetical issue was not ‘necessary for the effective exercise of jurisdiction’. (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [44], [101], [114]. See also John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at [42]-[46]; Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565 at [15]-[16]; Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522 at [61]-[66], [100]-[105], [125], [133]-[139], [145]-[151]; Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 esp at [51], [55].)

A test of necessity can be applied with varying degrees of strictness. Where, as is the case here, the power said to be implied impinges upon a fundamental principle of the administration of criminal justice - the right to confront accusers - the test must be applied with a higher level of strictness than may be applicable in other circumstances. (See John Fairfax v District Court at [51]) The extent of the power in such circumstances may be ‘minimalist’. (See Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [144].)

As the purpose for which an implied power exists is to serve the administration of justice, such a power cannot be exercised for a different purpose. (See, eg, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481. See also Ex parte Queensland Law Society [1984] 1 Qd R 166 at 170.)”

  1. With that background and those principles in mind, I have concluded for the following reasons that the Local Court has an implied power to make the RRO.

  2. As set out above, the provisions of the CPA requiring the brief to be served upon an accused person is satisfied by service upon the accused’s solicitors. The CPA is silent as to how solicitors are to obtain instructions from an accused person in relation to the brief. For instance, if it were the case that an arrangement was made whereby the solicitors (for whatever reason) declined to make an additional copy of the brief available for their accused client, but instead invited the accused (if not in custody) to attend a particular location to view the brief in order to obtain instructions, that would not be in breach of the CPA. Section 72(1) of the CPA simply requires an accused person’s legal representative to “seek to obtain the accused person’s instructions concerning the matters to be dealt with in the case conference before participating in the case conference.”

  3. If an accused is in custody and has been provided a full copy of the brief, it can be assumed that custodial conditions mean that the accused would not be able to carry a copy of the brief with them at all times. Inevitably, there will be times when an inmate cannot have their brief with them. This would not be in breach of the CPA – but merely reflects the exigencies of life when in a custodial setting.

  4. Accordingly, it can be seen that there is no unqualified or absolute “right” under the CPA for an accused to have the whole of the brief with them at all times.

  5. Section 61(1) of the CPA is qualified by s 61(2). Work must be given to the words in s 61(2) “any other law or obligation” and “relating to the provision of material to an accused person by a prosecutor”. Whilst examples of “law” are provided for in the Notes section, no examples are provided of an “obligation”. The phrase “relating to” is capable of wide meaning.

  6. The plaintiff’s contention that “obligation” could include the equitable duty of confidence has some force. Although the examples given were provided in relation to civil litigation and thus were of limited relevance, the proposition (or something similar to it) is still sound. A similar proposition was apparently recognised by Mason P in Nationwide News in the passage extracted above at [32]. When Mason P stated at [30], “[l]egitimate claims to confidentiality, including those touching areas attracting public interest immunity (emphasis added)”, the italicised words indicate that his Honour envisaged claims to confidentiality which went beyond those associated with public interest immunity.

  7. The plaintiff and other law enforcement colleagues are entrusted with a duty of investigating crimes, and in appropriate cases, collating briefs of evidence comprising witness statements and exhibits. They do this on behalf of the community in order to assist in guaranteeing “peace and order in society”. [9] In some instances, the evidence from a witness will be highly sensitive and may expose them to danger if those who knew their identity were not to be confined. Even if it be the case, as here, the accused would likely know the identity of all witnesses, that does not make it inutile to attempt to limit dissemination of documents or other information which emanates from a brief of evidence, especially within a custodial setting.

    9. Jago at 49-50.

  8. I do not accept the first defendant’s contention that the duty referred to in s 61(2) of the CPA is such that it could not cover a duty of confidentiality owed by police to a witness or prospective witness. In the context of criminal prosecutions investigated and prosecuted on behalf of the community, such an obligation can well be found. Such an obligation inheres in the ability of the police to investigate serious crime fearlessly on behalf of the community without the concern that a potential witness would be intimidated and dissuaded from giving evidence in the public interest. Such an obligation sits comfortably within the phrase “obligation relating to the provision of material to an accused person by a prosecutor”, especially in light of the examples given in relation to “a law” in the “Note” which gives examples of laws about privilege and immunity in relation to the provision of evidence: see Interpretation Act 1987 (NSW) s 34. Once such an obligation is found, it is clear that a balancing exercise involving competing public interests would need to be undertaken in determining whether a magistrate would make an RRO in a particular instance. Such balancing exercises are undertaken by magistrates regularly.

  9. Section 33 of the Interpretation Act can also be noted. That provides (relevantly) that in the interpretation of a provision of an Act:

33   Regard to be had to purposes or objects of Acts and statutory rules

[…] a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act […]) shall be preferred to a construction that would not promote that purpose or object.

  1. In my view, the purpose or object underlying the CPA includes the just provision of criminal justice to the people of New South Wales. An order made by a magistrate which would facilitate the prosecution of serious crime by providing, where appropriate, limited protections to witnesses in danger, without undermining an accused’s right to provide meaningful instructions for the purposes of a case conference, would promote the purpose or object underlying the CPA.

  2. Albeit in a different context, it is apparent from HT that tailoring orders have been recognised as being able to provide case-specific flexibility where appropriate. HT makes it plain that tailoring orders can be crafted to solve particular issues which arise in a particular case, balancing competing considerations and allowing the full picture to be put before a Court whilst protecting or preserving various interests as appropriate.

  3. I do not accept the argument of the first defendant that s 61 is in mandatory terms which cannot be departed from unless specified in the CPA.

  4. Turning to the first of the exceptions in the CPA identified by the first defendant – s 64 of the CPA. Whilst it can be noted that s 64 provides an explicit exception to the s 61 requirements in some circumstances without agreement by an accused, the existence of that section does not progress the first defendant’s argument. This is because one can glean from the terms of the section that it does not deal with the same type of document as a witness statement – but rather a “thing” which is impossible or impractical to copy, or another type of “thing” which is presumably not impossible or impractical to copy but which the accused agrees to “inspect” (having been provided with a notice specifying a “reasonable” time and place and a “reasonable opportunity” to inspect each thing referred to in the notice). Although “thing” is a very general word, I am not of the view that it includes a witness statement, given the use of that term elsewhere in the CPA.

  5. As to s 91 of the CPA – that allows a magistrate to dispense entirely with specified requirements in relation to statements or exhibits if an accused agrees, and thus can be readily distinguished from an RRO.

  6. Parts 2A and 2B of Ch 6 deal with “sensitive evidence” and “terrorism evidence”, providing a special regime for the handling of such material. Again, it can be observed that these Parts provide for physical copies of particular evidence to be withheld from an accused, and only be made available for inspection. This is clearly also readily distinguishable from an RRO.

  7. The provisions highlighted by the first defendant provide either statutory authority for dispensing with requirements of service of statements entirely (s 91 and Pts 2A and 2B), or do not relate to statements at all (s 64). Accordingly, contrary to the first defendant’s submissions, an RRO is not “replicat[ing] the substantive effect of these statutory regimes in circumstances where Parliament has not seen fit to do so”. An RRO does not prevent an accused from receiving the statements at all – it just restricts an accused from retaining them.

  8. The attempt by the first defendant to try to equate the RRO with the provisions which permit statements being withheld from an accused included referring in his submissions to the RRO as the “Brief Withholding Order”. However, such a device did not progress his argument because, as indicated above, such a description fails to reflect accurately the nature of the order. Likewise, the first defendant’s argument that “the true impediment to implication of a power is the fact that it would be contrary to a specific statutory obligation compelling disclosure” misrepresents the true nature of the order being contended for. An order restricting retention of a brief of evidence is not contrary to an obligation compelling disclosure.

  9. Another argument put by the first defendant is that an RRO would purport to intrude into what a defendant can do with his brief, and thus (it can be interpolated), such a power should not be readily implied as “necessary”. This argument is not persuasive. Whilst the effect of the order may well be to interfere with the defendant’s ability to do what he pleases with the brief at all times, an RRO is in truth an attempt to balance the important rights of a defendant to have the brief to a sufficient degree to allow him to give meaningful instructions to his lawyers for the purposes of a case conference (s 72 CPA) and the rights of the community to prosecute people for serious crime, even where that might involve some danger to individual witnesses.

  10. A power to make an RRO should be implied because it is necessary in certain circumstances. Without it, a situation may arise whereby a serious matter is not prosecuted, or is withdrawn, or the evidence in a prosecution is weakened as no other appropriate accommodation for the safety of a prospective prosecution witness can be made. Whether or not an RRO is made, or how it is framed in a particular circumstance, is a matter for an individual magistrate balancing the various competing public policy considerations including the individual rights of an accused. Further, if an RRO is made but in practice is found not to permit an accused person to have a meaningful opportunity to provide instructions, that is a practical matter which hopefully can be resolved by practical arrangements, with the parties and the authorities working together.

  11. Finally, as an argument against the implication of a power to make an RRO, the first defendant submitted that such an order in relation to a self-represented accused would be “unworkable”. Although this matter does not involve a self-represented accused, in my view most (but not all) of the same considerations apply, and so far as they are different, they do not count against the implication of a power to make an RRO. Again, a magistrate would need to balance the competing public policy considerations including the individual rights of the accused in deciding whether an RRO is appropriate in particular circumstances. Again, a practical approach should be taken in order to come to a workable outcome where possible.

Conclusion and Orders

  1. In my opinion, the magistrate erred in holding that the Local Court did not have an implied power to make the Restricted Retention Order.

  2. Accordingly, the Court makes the following orders:

  1. An order in the nature of certiorari quashing the Refusal Decision.

  2. An order in the nature of mandamus remitting the matter to the Local Court of New South Wales to deal with the plaintiff’s application for a Restricted Retention Order according to law.

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Endnotes

Decision last updated: 24 May 2023

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