Cosenza v Graham (No 2) - [2019] SASC 217

Supreme Court of South Australia

(Magistrates Appeals: Civil)

COSENZA v GRAHAM & ANOR (No 2)

[2019] SASC 217

Judgment of The Honourable Justice Parker

23 December 2019

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE

Permission to proceed with interlocutory appeal against decision of a magistrate to set aside subpoena.
The appellant instituted a private prosecution in the Magistrates Court alleging that he was assaulted by Senior Constable Graham in April 2013. The appellant’s complaint about the officer’s alleged conduct was investigated by the Police Ombudsman. The complaint was not substantiated. The appellant issued two subpoenas to the Commissioner of Police. The second subpoena sought the production of the investigation file conducted by Police in regard to the complaint. Both subpoenas were set aside by the Magistrate on the basis that the subpoenaed documents did not meet the legitimate forensic purpose test. Only the setting aside of the second subpoena is appealed.
The appellant contends that the Magistrate erred by:
1. failing to consider a legitimate forensic purpose of the subpoena material as proving both the identity of the defendant and the actus reus of the offence;
2. holding that it was “not on the cards” and there was no reasonable possibility that the subpoena material would materially assist the prosecution case; and
3. failing to consider a further legitimate forensic purpose of the subpoena material, being a comparison of the subpoena material to other sworn versions of the events given by Senior Constable Graham. Differences in the sworn versions of events may go to proof of lies or a consciousness of guilt.
Two questions arise. First, whether there are “special reasons” to grant permission to proceed with the interlocutory appeal. Secondly, in considering whether special reasons exist, it is relevant to consider the merits of the appeal.
Held per Parker J (refusing permission to appeal):
(1) Senior Constable Graham admitted in his affidavit dated 28 September 2015, and which was provided to the appellant, that he was the officer involved in the incident and that he had taken a mobile phone from the hands of the appellant and handcuffed him. The appellants first contention cannot succeed.
(2) It is mere speculation on the part of the appellant to suggest that Senior Constable Graham’s affidavit sworn 26 November 2015 is false and that he must have provided information to investigators that was materially different to the material in that affidavit. The appellant third contention is without merit.
(3) It is not “on the cards” or a reasonable possibility that the subpoenaed documents will materially assist the prosecution. The appellant is seeking to engage in a fishing expedition. There is no legitimate forensic purpose in seeking to obtain documents so as to see whether they may be relevant.
(4) There is nothing out of the ordinary about this case which would bring it within the “special reasons” test.
(5) There is nothing in the case to distinguish it from the general run of cases that parliament had in mind when it enacted s 42(1a).
(6) Permission to proceed with interlocutory appeal refused.
Police Complaints and Discipline Act 2016 (SA) s 44; Magistrates Court Act 1991 (SA) s 42(1a), referred to.
Australian Federal Police v XYZ (2015) 123 SASR 274; Everett v The Queen (1994) 181 CLR 295; Fried v National Australia Bank Ltd (2000) 175 ALR 194; Gassner v Frost [1940] SASR 295; Goldsmith v Newman (1992) (1992) 59 SASR 404; Johns v Australian Securities Commission (1993) 178 CLR 408; Marcel v Commissioner of Police of the Metropolis [1992] Ch 259; Siewertsz van Reesema v Police [2009] SASC 8; X7 v Australian Crime Commission (2013) 248 CLR 92, considered.

COSENZA v GRAHAM & ANOR (No 2)

[2019] SASC 217

Civil

PARKER J: On 25 November 2019, I dismissed an interlocutory appeal by Dean Cosenza against a decision of a magistrate to set aside a subpoena directed to the Commissioner of Police. At that time I provided very brief reasons and indicated that I would provide more comprehensive reasons at a later date. These are those reasons.

Background

Mr Cosenza has instituted a private prosecution in the Magistrates Court alleging that he was assaulted by a police officer, Senior Constable Graham in 2015. The facts alleged by Mr Cosenza are that he was sitting in his parked car in Brompton at about 10:00 pm on a Friday night. Senior Constable Graham was driving a marked police car along the street where Mr Cosenza was parked. He stopped the police car and approached Mr Cosenza. He accused Mr Cosenza of trying to drive away from him. Mr Cosenza stated that he was simply minding his own business.
Mr Cosenza has alleged that while he was attempting to record the conversation on his mobile phone, Senior Constable Graham reached into his car and grabbed the phone from him. Mr Cosenza asserts that he then felt anxious and disorientated and told Graham that he suffered from an anxiety condition.
Senior Constable Graham stated that he wanted Mr Cosenza to undergo a breath test. Mr Cosenza said he was not driving and questioned whether Graham was entitled to demand a breath test. Mr Cosenza said that he was scared and tried to lock the door of his car, however, Senior Constable Graham opened the door before Mr Cosenza could lock it. He alleges that he was pulled from the car by Graham. Mr Cosenza also alleges that Senior Constable Graham assaulted him by grabbing his arm and twisting it and then slamming his head onto the car roof. Senior Constable Graham handcuffed Mr Cosenza and allegedly tightened the restraints to such a degree as to cause him significant pain.
Subsequently, Mr Cosenza was charged with an offence of refusing an alco‑test but that charge was later withdrawn. During the course of those proceedings Mr Cosenza received various documents, including two affidavits affirmed by Senior Constable Graham. I refer to the content of those affidavits below. Mr Cosenza later made a complaint about the conduct of Senior Constable Graham to the Police Ombudsman. The matter was investigated by the police Internal Investigation Section but the complaint was not substantiated. Mr Cosenza was informed of that outcome.
The first affidavit affirmed by Senior Constable Graham in support of the prosecution of Mr Cosenza was dated 28 September 2015. His version of the relevant events is materially different from that alleged by Mr Cosenza. In essence, he alleges that Mr Cosenza “shaped up” to him and was belligerent and uncooperative. Senior Constable Graham stated that he feared for his safety as he was alone and Mr Cosenza is larger than him. Importantly for present purposes, Senior Constable Graham stated that he removed a mobile telephone from the hands of Mr Cosenza and applied handcuffs.
In his second affidavit affirmed on 26 November 2015 Senior Constable Graham stated that the content of his earlier affidavit was a duplicate of that he had previously provided to the investigators dealing with the complaint made by Mr Cosenza.

The subpoena

Mr Cosenza initially issued two subpoenas to the Commissioner of Police. The first subpoena sought “any and all documents and information involving any allegations of or actual misconduct involving” Senior Constable Graham. The Magistrate set aside the first subpoena. Mr Cosenza has not appealed against that decision.
The second subpoena issued by Mr Cosenza was in the following terms:
Production of the investigation file conducted by SA Police regarding a complaint made against Senior Constable Graham… by Dean Cosenza regarding the 3 April 2015 assault occasioned on him at Brompton.
The Commissioner has acknowledged that an investigation was conducted into the alleged assault and that a file exists containing documents relating to that investigation.

The Magistrate’s reason

In determining to set aside the second subpoena the Magistrate referred to the summary of the relevant principles stated by Weinberg J in Fried v National Australia Bank Ltd. Weinberg J stated that it was not appropriate to allow a subpoena to stand “which does little more than trawl for documents which may be used to impugn the credit of a particular witness”. Weinberg J also stated that the Court must be alert to ensure that any subpoena has a “legitimate forensic purpose”. Such a purpose must be identifiable and likely to facilitate the conduct of the proceeding rather than merely oppress a party or witness.
The Magistrate also referred to the summary of the relevant principles that I referred to in Australian Federal Police v XYZ. In that case, I had adopted a summary of the principles as follows:
[40]        The principles for determining whether a party is entitled to access documents by way of a subpoena were summarised by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and De Pietro as follows:
(a)    it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b)   the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c)    the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”.
(d)   a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(e)    the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)    a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)    in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h)   where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
(Footnotes omitted)
The Magistrate noted that Mr Cosenza acknowledged that the only purpose of seeking access to the particular documents was to attack the credit of Senior Constable Graham at trial. He had not suggested that there was any other justification for the issue of the subpoena. The Magistrate described Mr Cosenza’s objects as follows:
Mr Cosenza wants to scour the documents to see if there are any alleged or established incidents of misconduct or impropriety. He wants to dig into the accused’s past and sniff out any clues that might support him in proving his case. He wants to be able to cross‑examine the accused at trial about any prior misconduct. He wants to show a pattern of past behaviour which would effectively corroborate his allegations.
The Magistrate also noted that Mr Cosenza wanted access to documents recording what Senior Constable Graham may have told the Police Ombudsman in the investigation, as well as any other statements or documents compiled during that investigation. Mr Cosenza wanted to be able to cross-examine Senior Constable Graham on any prior inconsistent statement by comparing what he said at trial to what might have been said to the Police Ombudsman. Mr Cosenza complained that he would not be able to have a fair trial without access to the subpoenaed documents. He asserted that he would be prejudiced in conducting the prosecution because he would not know about matters that might expose Senior Constable Graham “as an unreliable witness, or a liar, or a thug, or a serial accumulator of misconduct complaints.”
With the consent of Mr Cosenza, the Magistrate received a confidential affidavit sworn by Detective Superintendent Mark Trenwith, the officer in charge of the Ethical and Professional Standards Branch of SA Police. Superintendent Trenwith’s affidavit showed that there were documents that were capable of falling within the scope of both subpoenas. Some of the documents related to complaints made against Senior Constable Graham in relation to other matters, while the balance related to the specific complaint by Mr Cosenza that had led to the investigation by the Police Ombudsman. I note that, under the legislative scheme in force at the relevant time, investigations on behalf of the Police Ombudsman were generally carried out by police.
Superintendent Trenwith’s affidavit revealed that all of the complaints made against Senior Constable Graham had been considered or adjudicated upon by an appropriate agency. None of the complaints had resulted in any sanction. In this light the Magistrate found that, apart from the complaint by Mr Cosenza, none of the complaints against Senior Constable Graham had any factual connection to the alleged altercation with Mr Cosenza.
The Magistrate found that the documents sought in the second subpoena were potentially relevant to the trial, although that possibility was remote and subject to numerous unknown contingencies.
The Magistrate referred to the status of Mr Cosenza as a private prosecutor. His Honour noted that any material impugning the credibility of the Senior Constable Graham (if it existed) could only be used after the close of the prosecution case, after a case to answer has been found and after the accused has given evidence-in-chief. His Honour also noted that Senior Constable Graham was not obliged to say, do or prove anything. It was possible that he may never give evidence or submit to cross-examination. In that respect, the position of Senior Constable Graham was different from that of a police officer giving evidence in a prosecution by the police or the DPP. A prosecution witness did not have a right to silence and would ordinarily be cross-examined by defence counsel. For these reasons, the Magistrate was not persuaded that there was a legitimate forensic purpose in obtaining the relevant documents.
The Magistrate also noted that, even if there was a legitimate forensic purpose, it was necessary for Mr Cosenza to show that it was “on the cards” or “a reasonable possibility” that the documents sought under the subpoena would materially assist his case. There must be a rational basis that went beyond a speculative hope or curiosity in order to conclude that the documents will have a bearing on the case.
The Magistrate observed that Mr Cosenza had not pointed to any detail in the subpoenaed materials that would show anything untoward or discreditable about Senior Constable Graham. There was also no suggestion that the documents being sought contained anything other than witness statements or affidavits prepared by Senior Constable Graham and others for the purposes of the proposed prosecution of Mr Cosenza. Those documents would have been provided to Mr Cosenza as part of the pre-trial disclosure.
The Magistrate also observed that Mr Cosenza was unable to demonstrate that there were any documents that could or might assist his case. He simply wanted to trawl through the material in the hope of finding something that might discredit Senior Constable Graham. On this basis, the Magistrate found that Mr Cosenza had not proffered any fact or basis that enabled his Honour to conclude that the “on the cards” test was satisfied. This was clearly a case of an impermissible “fishing expedition”.
The Magistrate referred to the fact that I had observed in Australian Federal Police v XYZ that a “more liberal view” should be taken of the “legitimate forensic purpose” and “on the cards” tests in criminal proceedings. However, his Honour found that the more liberal view to which I have referred did not apply to Mr Cosenza as he was the complainant and not the accused.
Due to the Magistrate’s conclusion that there was no legitimate forensic purpose, it was unnecessary for his Honour to consider whether the subpoenaed material was subject to a statutory immunity from disclosure under s 44 of the Police Complaints and Discipline Act 2016 (SA).

The appeal

Mr Cosenza has advanced the following grounds of appeal:
3.1 The Magistrate erred in failing to consider a legitimate forensic purpose of the subpoena material was in proving elements of the charged offending (proof of identity, proof of an application of force).
3.2 The Magistrate erred in holding it was “not on the cards” and there was no reasonable possibility the documents would materially assist the prosecution case.
3.3 The Magistrate erred in failing to consider a further legitimate forensic purpose of the subpoena material, being a comparison of the subpoena material to other sworn versions of events given by [Senior Constable] Graham of the same incident. Differences in sworn versions of events may go to proof of lies or a consciousness of guilt on the part of the accused.

The appellant’s submissions

Mr Cosenza accepts that this is an appeal against an interlocutory judgment. Thus, in accordance with s 42(1a) of the Magistrates Court Act 1991 (SA), an appeal does not lie unless the Court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial. Mr Cosenza submits that whether there are “special reasons” must be considered in the statutory context. The term ordinarily refers to matters outside of the ordinary course of things but does not require a situation to be extraordinary or novel.
Mr Cosenza submits that the “special reasons” requirement is satisfied because it is in the interests of the administration of justice that the material sought under the second subpoena should be provided prior to trial and also because the appeal raises a question as to the proper construction of s 44 of the Police Complaints and Discipline Act.
Mr Cosenza submits that it would be a waste of time and money to allow the prosecution to proceed and later to have an appeal decided in his favour. This was particularly important in the event that Senior Constable Graham is acquitted at trial. Thus, the prosecution might contend on appeal that it was precluded from leading relevant and admissible evidence to prove elements of the offence. However, permission for the prosecution to appeal against the outcome of the trial would only be granted in rare and exceptional circumstances.
Mr Cosenza further submitted that his status as a private prosecutor was a relevant factor. The material that he seeks under subpoena would be provided to a police prosecutor in the ordinary course. However, he faces the difficulty that the Commissioner will not provide the material and it can only be obtained by way of subpoena.
Mr Cosenza also submits that s 44(a) of the Police Complaints and Discipline Act permits a prosecutor to obtain material generated in the investigation of a complaint for the purpose of prosecuting an offence that is alleged to arise from the conduct that was the subject of the complaint.
Mr Cosenza accepts that I correctly stated the relevant principles in Australian Federal Police v XYZ. Mr Cosenza also accepts that the “more liberal view” that I referred to in relation to criminal proceedings was not applicable to him as the prosecutor and only applied to the accused.

Mr Cosenza submits that the Magistrate erred in setting aside the second subpoena by failing to take into account that the documents he sought would have the legitimate forensic purpose of assisting to prove both the identity of the defendant and the actus reus of the offence. That was because the documents were likely to contain admissions to that effect which would be admissible as exceptions to the hearsay rule.
A further submission on behalf of Mr Cosenza was that the Magistrate had failed to take into account the existence of another version of events that had been given by Senior Constable Graham. If that version differed from that contained in the police file it would be relevant to credit but also may be relevant to establish proof of lies and an associated consciousness of guilt.
It was also submitted on behalf of Mr Cosenza that the Magistrate failed to take into account that it was “on the cards” that the file would contain a version of events given by Senior Constable Graham as to what had occurred. It was likely this version of events would be in the form of a sworn statement or affidavit.
In support of these contentions Mr Cosenza submits that it is not plausible that Senior Constable Graham would not have been asked to provide his version of events to the investigator. The finding that the complaint was not substantiated supports his contention that there was a different version of events which could only have come from Senior Constable Graham. In the course of the police prosecution alleging that Mr Cosenza had refused to submit to an alco‑test, two affidavits were produced by Senior Constable Graham in support of the charge. In both of those affidavits the officer deposed to arresting Mr Cosenza and placing his hands upon him. Thus, Senior Constable Graham admitted that he was the person who dealt with Mr Cosenza and also admitted that he applied force to him.
Mr Cosenza further submitted that it was reasonably apparent that Senior Constable Graham had provided three versions of the relevant events. Two of those versions were contained in the affidavits compiled in support of the alco‑test charge and the third related to the complaint about the conduct of the officer. It was submitted that if the third version provided in relation to the police complaint is in the same terms as the versions already provided to Mr Cosenza, that would confirm the admission of Senior Constable Graham to elements of the offence. If the third affidavit differed from the two earlier documents, then that difference would be relevant to credit and may also be admissible as proof of lies and evidence of a consciousness of guilt.
For these reasons, Mr Cosenza submitted that it was more than “on the cards” that the subpoena would provide information that would materially assist the prosecution case. Thus, there is a legitimate forensic purpose in obtaining the material which is more than speculative and does not amount to mere fishing.

The submissions for the Commissioner of Police

A substantial component of the submissions advanced on behalf of the Commissioner of Police were directed at the operation of s 44 of the Police Complaints and Discipline Act. As I have already indicated, as I was able to decide the application for permission to decide on other grounds, it is not necessary to refer to those submissions.
The Commissioner contends that permission to appeal should be refused as there are not special reasons showing it would be in the interests of the administration of justice to hear the appeal. There is nothing out of the ordinary in this matter. The Court should not sanction, through the grant of permission, the fragmentation by the prosecution of the criminal process by appealing against a pre-trial interlocutory order concerning access to evidentiary material. If the matter proceeds to trial and Senior Constable Graham is convicted, this Court may never need to be troubled by the issues that Mr Cosenza seeks to raise on this appeal.
The Commissioner also submits that the Magistrate was correct to conclude that it was not “on the cards” that the subpoenaed documents would materially assist Mr Cosenza’s case. There was no reason to doubt that the version of events deposed to by Senior Constable Graham in the affidavit that was in the possession of Mr Cosenza duplicated that which he had provided to the investigators. The Magistrate correctly found that Mr Cosenza wants the documents to see if they are or might be relevant. That was a fishing expedition.
The Commissioner referred to the observations made by Bleby J in Siewerstz van Reesma v Police.
In order to grant permission for an interlocutory appeal in criminal proceedings, the Commissioner submits that the special reasons must be sufficient to justify an exception from the well-recognised principle that criminal proceedings should not be split. There is nothing in this case that distinguished it “from the general run of cases that Parliament had in mind” when it enacted s 42(1a). It was commonplace that parties to a criminal proceeding will seek to exercise the power of the court to compel the production of documents prior to the commencement of trial.
The Commissioner further submits that the two reasons advanced by Mr Cosenza are not special reasons. His first reason is no more than a contention that it would be a waste of time and money that, if after the completion of the prosecution in the Magistrates Court, an appeal was later decided in his favour. The Commissioner submits that this factor will be present in any appeal where the conduct of the trial might be affected by an interlocutory ruling. Moreover, this first reason is contingent and only arises if Senior Constable Graham is acquitted. Furthermore, Mr Cosenza might appeal against an acquittal. It is preferable that this Court should hear only one appeal concerning the conduct of the prosecution rather than two.
The Commissioner submits that demonstration of a legitimate forensic purpose requires more than mere relevance. The two sworn statements made by Senior Constable Graham that are already in the possession of Mr Cosenza contain admissions that he was the person involved in the incident and also admit that he laid hands upon Mr Cosenza.
The Commissioner also points to the fact that Mr Cosenza was given numerous opportunities to identify the legitimate forensic purpose that he relied upon. Mr Cosenza acknowledged in both his written and oral submissions that the only legitimate purpose he relied upon was credibility. The applicant should not be permitted to advance a difference case on appeal from that put to the Magistrate.
The Commissioner submits that the requirement to demonstrate that it is “on the cards” that documents will materially assist a party’s case is in addition to the need to establish a clear legitimate forensic purpose. The Magistrate was correct to find that the relevant question was whether it was “on the cards” that the subpoena would reveal statements by Senior Constable Graham that contained relevant differences from the statements already in the possession of Mr Cosenza. The Magistrate correctly held that Mr Cosenza had failed to discharge his onus in this regard.
The Commissioner submits that the finding by his Honour was correct for several reasons. Those reasons are, first, Senior Constable Graham has deposed in his affidavit of 26 November 2015 that the affidavit dated 28 September 2015 that was in the possession of Mr Cosenza duplicated the information previously provided to the officers investigating Mr Cosenza’s complaint.
Secondly, the Commissioner submits that at the time Senior Constable Graham provided this version of events to the investigating officers, he had already committed that version to writing by preparing the police apprehension report. Thirdly, the Commissioner submits that there would be no reason for Senior Constable Graham to prepare different versions for the investigators and for use in the prosecution. Finally, the Commissioner notes that the investigation conducted by the Police Ombudsman did not substantiate the allegations made by Mr Cosenza.
The assessment by the Magistrate of the documents sought in the subpoena was influenced by the fact that the only identified legitimate forensic purpose of credibility would only arise if Mr Cosenza established a case to answer and also Senior Constable Graham decided to give evidence. He now seeks to advance a different forensic purpose. The different purpose is that he may rely upon the hypothetical different version and that proven lies by senior Constable Graham within that different version will demonstrate his consciousness of guilt.
The Commissioner submits that quite apart from the fact that Mr Cosenza should not be allowed to present a different case on appeal, it is improbable and certainly not “on the cards” that the hypothesised lies occurred. According to the submission of the Commissioner, the Magistrate correctly found that Mr Cosenza simply wants the documents to see whether or not they may be relevant. His Honour correctly found that that was a clear case of an impermissible “fishing expedition”.

Submissions on behalf of Senior Constable Graham

Counsel for Senior Constable Graham submitted that it is not necessary to consider the operation of s 44 of the Police Complaints and Discipline Act. Counsel further submitted that the statement sought in the subpoena had been obtained by the exercise of coercive powers under the Police Complaints and Discipline Act. Information obtained by the exercise of a statutory power could not be used for another purpose. The use of a power conferred for one purpose cannot be lawfully be used for another purpose without giving rise to an abuse of power.
Counsel for Senior Constable Graham further submitted that the touchstone of legitimate forensic purpose is whether there is a reasonable possibility that the documents sought under a subpoena would materially assist the party seeking those documents. However, where a prosecutor seeks documents, the legitimate forensic purpose test must be overlayed by the “fundamental principle” that it is for the prosecution to prove its case and by the “companion rule” that the prosecution must do so without assistance from the accused. Thus, it is not for the Court to lend its compulsive processes to assist the prosecutor to discharge its onus. That is what Mr Cosenza apparently seeks to do in this case.
The documents sought by Mr Cosenza were obtained by the Internal Investigation Section of SA Police for the purpose of investigating a complaint that he had made in circumstances were the officer had no right to silence and if he purported to exercise that right he would expose himself to disciplinary proceedings. The documents were not obtained for the purposes of gathering evidence for the use in the prosecution of Senior Constable Graham. Counsel for Senior Constable Graham adopted the submissions made on behalf of the Commissioner of Police in relation to the question of legitimate forensic purpose.

Consideration

As I have already indicated, the Magistrate found it unnecessary to consider the operation of the Police Complaints and Discipline Act. This application can also be decided without the need to consider the operation of that Act.
Two questions arise. First, because the decision of the Magistrate to set aside the subpoena was an interlocutory decision, are there “special reasons” which require that Mr Cosenza should be granted permission to proceed with this interlocutory appeal. In considering whether “special reasons” exist, it is relevant to consider the second question. That being whether the Magistrate erred in deciding to set aside the subpoena. In other words, the merits of the proposed appeal are relevant to the question of permission.
Section 42(1a)(c) of the Magistrates Court Act requires that before granting permission the Court must be “satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial”. Bleby J considered the meaning of the term “special reasons” in Siewertsz van Reesema v Police. His Honour stated:
[23] The phrase “special reasons” is not defined in the Magistrates Court Act. It is an expression that “must always be interpreted in light of its context”. Section 42(1a) permits appeals from interlocutory judgments only in limited circumstances. The purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented. If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.
(Footnotes omitted)
I do not consider that there is anything out of the ordinary about this case which would bring it within the “special reasons” test.
The suggestion by Mr Cosenza that access to documents compiled in the course of the investigation on behalf of the Police Ombudsman would assist in establishing that Senior Constable Graham was the officer involved in the incident at Brompton lacks all merit. There is no question whatsoever that Senior Constable Graham was the officer involved in the incident. He unequivocally admitted that fact in his affidavit dated 28 September 2015, albeit that the affidavit was sworn for use in other proceedings, i.e. the prosecution of Mr Cosenza for refusing an alco-test. Mr Cosenza would have been provided with other documents compiled by Senior Constable Graham relevant to that prosecution. I also note that he has successfully subpoenaed data from the “real‑time automatic vehicle location system” for the police vehicle driven by Senior Constable Graham at the relevant time. Mr Cosenza was also served by Senior Constable Graham with a cannabis expiation notice completed by that officer.
Furthermore, Senior Constable Graham also admitted in his affidavit dated 28 September 2015 that he had taken a mobile phone from the hands of Mr Cosenza and handcuffed him. These admissions establish the actus reus of the alleged common assault.
I also do not consider that it is “on the cards” or a reasonable possibility that the documents sought by Mr Cosenza will materially assist the prosecution. Senior Constable Graham deposed in his affidavit dated 26 November 2015 that his affidavit of 28 September 2015 duplicated a statement which he had previously provided to the investigators acting on behalf of the Police Ombudsman. It is mere speculation on the part of Mr Cosenza to suggest, as he effectively does, that the affidavit of 26 November 2015 is false and that Senior Constable Graham must have provided information to the investigators that was materially different to that contained in his affidavit of 28 September 2015. There is also no substance to the suggestion by Mr Cosenza that the failure to find his complaint established indicates that Senior Constable Graham must have provided a different version of events to the investigators. That contention completely misses the point that the version of events advanced by Senior Constable Graham in the affidavit was entirely exculpatory. I hasten to add that I make no finding as to which of the competing versions of events is truthful.
For these reasons, it is quite clear that Mr Cosenza is simply seeking to engage in a “fishing expedition”. As I noted in Australian Federal Police v XYZ, that is not a legitimate forensic purpose and will not be permitted. While the documents sought by Mr Cosenza might potentially be relevant to the private prosecution, there is no legitimate forensic purpose in seeking to obtain documents so as to see whether they may be relevant. That is mere fishing.
I accept the submission made on behalf of the Commissioner that there is nothing in this case to distinguish it from the general run of cases that the Parliament would have had in mind when it enacted s 42(1a) in its current form. I also accept the correctness of the Commissioner’s submission that it is preferable that the Court should only hear one appeal arising from this prosecution rather than, potentially, two. That is the reason for both the enactment of the “special reasons” test and the long-standing reluctance of the courts to permit splitting of criminal proceedings.
For these reasons, I refused the application for permission to proceed with the interlocutory appeal challenging the order of the Magistrate.