Director of Public Prosecutions (NSW) v Izod; Director of Public Prosecutions (NSW) v Zreika

[2020] NSWSC 381

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Izod; Director of Public Prosecutions (NSW) v Zreika [2020] NSWSC 381
Hearing dates:	10 February 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Common Law
Before:	Simpson AJ
Decision:	In proceedings numbered 2019/293243 (Director of Public Prosecutions (NSW) v Michael John Izod): 1. The appeal is allowed. 2. The orders of Magistrate Atkinson made on 30 May 2019 are set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. 4. The first defendant (Michael Izod) pay the plaintiff’s costs of the proceedings.  In proceedings numbered 2019/293528 (Director of Public Prosecutions (NSW) v Mohammed Zreika): 1. The appeal is allowed. 2. The orders of Magistrate Atkinson made on 30 May 2019 are set aside. 3. The matter is remitted to the Local Court to be determined according to law. 4 The first defendant (Mohammed Zreika) pay the plaintiff’s costs of the proceedings.
Catchwords:	EVIDENCE – Privileges – Client legal privilege – Loss of privilege on the basis of misconduct – Correct test to be applied – Relevant and irrelevant considerations – Whether considerations reflect an argument which, if advanced, may have affected the outcome of the determination
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes (Appeal and Review) Act 2001 (NSW), ss 56(1)(c), 59(2) Crimes Act 1900 (NSW), ss 319, 527C Evidence Act 1995 (NSW), Ch 3, Pt 3.10, Div 1, ss 118, 125 Supreme Court Act 1970 (NSW), s 69 Telecommunications (Interception of Access) Act 1979 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2)
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456 Meagher v Stevenson (1993) NSWLR 736 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Category:	Principal judgment
Parties:	2019/293243 Director of Public Prosecutions (NSW) (Plaintiff) Michael John Izod (1st Defendant) Local Court of New South Wales (2nd Defendant)   2019/293258 Director of Public Prosecutions (NSW) (Plaintiff) Mohammed Zreika (1st Defendant) Local Court of New South Wales (2nd Defendant)
Representation:	Counsel: D Kell SC/E Jones (Plaintiff) K H Averre (Izod) T Kassimatis QC (Zreika) Local Court of New South Wales (submitting appearance)     Solicitors: Office of the Director of Public Prosecutions (Plaintiff) Total Legal (Izod) Kaczmarek Grigor Lawyers (Zreika)
File Number(s):	2019/293243 (Izod)2019/293258 (Zreika)
Publication restriction:	Confidential annexure available to parties or on order of a Supreme Court judge
Decision under appeal	Court or tribunal: Central Local Court Jurisdiction: Criminal Date of Decision: 30 May 2019 Before: Magistrate Atkinson File Number(s): 2018/285953 (Izod) 2018/301033 (Zreika)

Headnote

[This headnote is not to be read as part of the judgment]

On 30 May 2019 a magistrate of the Local Court dismissed criminal charges against two defendants, Mr Izod and Mr Zreika. Mr Zreika is a solicitor who was engaged to represent Mr Izod in separate criminal proceedings that were listed for hearing at the Manly Local Court on 28 June 2018. At 1.44am on the morning of 28 June 2018, Mr Izod was recorded, in a telephone conversation with an unidentified male, saying that he intended to attempt to seek a doctor’s certificate in order to obtain an adjournment of the hearing of the criminal charges. Commencing from about 6.50am, a series of telephone conversations and SMS messages were exchanged between the defendants which were lawfully intercepted pursuant to a warrant. At 9.42am Mr Izod attended a medical practice where he consulted Dr Yu. Dr Yu provided Mr Izod with a medical certificate which, at 9.46am, was sent by facsimile to Mr Zreika. Mr Zreika appeared on Mr Izod’s behalf and sought an adjournment of the hearing, presenting Dr Yu’s medical certificate in support of the application. The application was granted and the proceedings were adjourned.

Both defendants were charged with doing an act with the intention of perverting the course of justice (Crimes Act 1900 (NSW), s 319). The substance of the charges against the defendants was that they contrived to procure the adjournment of the proceedings against Mr Izod, Mr Zreika by advising Mr Izod, and Mr Izod by giving a false history to Dr Yu, on the basis of which Dr Yu gave his certificate diagnosing a medical condition from which Mr Izod did not in fact suffer. The act of Mr Zreika alleged to constitute the offence lay in advice he gave to Mr Izod. The result was an adjournment to which Mr Izod was not entitled.

These charges were listed for hearing before the magistrate. The prosecutor proposed to rely on the SMS messages and transcripts of the telephone conversations (“the communications”) in proof of the offences. The critical issue was the determination of whether evidence of the communications was admissible in proof of the s 319 charges. This determination involved consideration of client legal privilege (Evidence Act 1995 (NSW), s 118), and the loss of such privilege on the basis of misconduct (Evidence Act 1995 (NSW), s 125). The substance of the magistrate’s conclusion was that “misconduct has not been established” and, accordingly, the privilege conferred had not been lost; this finding was determinative of the proceedings. The magistrate observed that Magistrate Ryan, who granted the adjournment of Mr Izod’s proceedings, was entitled to do so.

The Director of Public Prosecutions (“the DPP”) challenged the magistrate’s orders. The DPP’s principal complaint was that the magistrate applied a test that was erroneous in law – that the prosecution establish as a fact that the communications were made in furtherance of the commission of the offence against s 319. The DPP contended that the correct approach was whether there were reasonable grounds for finding that the communications were made in furtherance of the commission of that offence. The DPP also contended that the magistrate took into account irrelevant considerations, and failed to take into account relevant considerations. The DPP’s final ground was that the magistrate failed to give adequate conclusions for her reasons.

Held, upholding the appeal and remitting the matter to the Local Court to be dealt with according to law:

(1) The magistrate did misconceive the question submitted to her and applied the wrong test. Section 125(2) of the Evidence Act 1995 (NSW) required an evaluation of evidence said to provide the basis for a conclusion that there were reasonable grounds for finding that the communications in question were made in furtherance of the s 319 offences: at [36], [38].

(2) The magistrate was entitled to consider the fact that Dr Yu had carried out an independent examination of Mr Izod and made a diagnosis of gastroenteritis as it was not irrelevant, although it was far from conclusive. The magistrate’s observation that Magistrate Ryan was entitled to adjourn the hearing of the criminal charges was irrelevant. However, the ground was ultimately rejected as this consideration had little bearing on her Honour’s decisions: at [42]-[43].

(3) The four considerations identified by the DPP that the magistrate failed to take into account were relevant to whether there were reasonable grounds for finding that the s 319 offences had been committed, and whether there were reasonable grounds for finding that the communications were made in furtherance of those offences. These considerations reflect an argument advanced to the magistrate which, if considered, may have affected the outcome of the determination. Failure to take into account the four considerations was an error of law: at [45], [47].

(4) Erroneous reasoning is not equivalent to inadequacy of reasons, the magistrate’s reasons adequately explained the path to her conclusions: at [49].

JUDGMENT

1. SIMPSON AJ: On 30 May 2019 a magistrate of the Local Court dismissed criminal charges against two defendants, Michael Izod and Mohammed Zreika. By separate summonses filed on 19 September 2019 the plaintiff, the Director of Public Prosecutions NSW (“the DPP”), challenges those orders. The first summons named Mr Izod as first defendant, and the Local Court of NSW as second defendant. The second summons named Mr Zreika as first defendant and the Local Court of NSW as second defendant. In each case, the Local Court has filed a submitting appearance. The DPP in each case challenges the orders both by way of appeal brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”) and also by invoking the jurisdiction conferred on this court by s 69 of the Supreme Court Act 1970 (NSW). For the latter, he needs and seeks an extension of the time provided by the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2). That is not opposed by Mr Izod but is opposed by Mr Zreika. The challenges involve consideration of ss 118 and 125 of the Evidence Act 1995 (NSW).

2. The appropriateness of proceeding both by way of appeal and via the supervisory jurisdiction of this Court was not raised as an issue: see Meagher v Stevenson (1993) NSWLR 736; and the later observations in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [24]. No point having been taken in that respect, I say no more about it.

3. On 29 May 2019, pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) the magistrate ordered that, until the court otherwise orders, there be no publication in NSW of certain information, that being:

“All communications between the [defendants]”.

4. In the context of these proceedings the order relates to telephone conversations and SMS messages that passed between the defendants on 28 June 2018. Those communications were lawfully intercepted pursuant to a warrant issued under the Telecommunications (Interception of Access) Act 1979 (Cth) on 22 June 2018.

5. The suppression order has consequences for these reasons. The communications between the defendants to which the order relates lie at the heart of the DPP’s complaint. It is virtually impossible fully to explain the DPP’s challenges or the argument in support of and against them without reference to the content of the communications.

6. While there may be some doubt whether the suppression order binds this Court, its effect would be entirely nullified if the communications were reproduced in a judgment of this Court, which is then subject to publication and potential republication. I will therefore detail the communications in a confidential addendum to this judgment, to be released if and when circumstances permit.

Factual background

7. At least for present purposes the following facts are uncontroversial. Mr Zreika is a solicitor. In 2018 he was engaged to represent Mr Izod, who faced two charges of unlawful possession of property, contrary to s 527C of the Crimes Act 1900 (NSW). The charges were listed for hearing at the Manly Local Court on 28 June 2018. On that morning, commencing at about 6.50am, a series of SMS messages were exchanged between the defendants.

8. On the same day, at 1.44am, Mr Izod was recorded, in a telephone conversation with an unidentified male, saying that he intended to attempt to seek a doctor’s certificate in order to obtain an adjournment of the hearing of the criminal charges. Later, he was recorded in a conversation with Mr Zreika. In a later conversation (8.33am) with a female, he said that he was awoken by a telephone call (from another person) at 6.00am.

9. At 9.42am Mr Izod then attended at a medical practice where he consulted Dr James Yu. Dr Yu took a history from and examined Mr Izod. Mr Izod gave a history of experiencing diarrhoea and vomiting from 4.00am. As a result Dr Yu provided Mr Izod with a medical certificate which stated:

“In my opinion he was/is suffering from a medical condition: gastroenteritis

…

Michael Izod will be unfit for work/court from 28-6-2018 up to and including: 29-6-2018.”

10. At 9.46am Mr Izod sent the certificate by facsimile to Mr Zreika. Mr Zreika appeared on behalf of Mr Izod at the Manly Local Court and sought an adjournment of the hearing. In support of the application for adjournment Mr Zreika presented Dr Yu’s medical certificate. The application was granted and the proceedings adjourned.

11. On 18 September 2018 Mr Izod was charged, by Court Attendance Notice, with an offence against s 319 of the Crimes Act. On 3 October 2018 Mr Zreika was similarly charged. Section 319 provides as follows:

“319   General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.”

12. The Court Attendance Notice in relation to the first defendant particularised the offence in the following terms:

“That Michael IZOD on the 28th day of June 2018, at Chatswood in the State of New South Wales, did provide false information/symptoms to a Doctor resulting in a medical certificate being issued to adjourn a court matter, intending thereby to pervert the course of justice.”

13. The Court Attendance Notice in relation to Mr Zreika particularised the offence in the following terms:

“That Mohammed ZREIKA on the 28th day of June 2018, at Manly in the State of New South Wales, did provide Michael IZOD with a medical condition to provide to a Doctor, intending thereby to pervert the course of justice.”

14. The substance of the charges against the defendants was that they contrived to procure the adjournment of the proceedings against Mr Izod, Mr Zreika by advising Mr Izod, and Mr Izod by giving a false history to Dr Yu, on the basis of which Dr Yu gave his certificate diagnosing a medical condition from which Mr Izod did not in fact suffer. The act of Mr Zreika alleged to constitute the offence lay in advice he gave to Mr Izod. The result was an adjournment to which Mr Izod was not entitled.

15. Each charge was listed for hearing before Magistrate Atkinson on 29 and 30 May 2019 at Central Local Court. Both defendants appeared, represented by counsel. The prosecutor proposed to rely on the SMS messages and transcripts of the telephone conversations (to which I will refer collectively as “the communications”) in proof of the offences. At the outset an evidentiary issue arose. Counsel representing the defendants objected to the tender of evidence of the communications, on the basis that they were protected from disclosure by Ch 3, Pt 3.10, Div 1 of the Evidence Act 1995 (NSW). Chapter 3 is concerned with admissibility of evidence. Part 3.10 provides for “Privileges”. Division 1 of Pt 3.10 deals with “Client legal privilege”. Section 118 thereof provides:

“118   Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a)    a confidential communication made between the client and a lawyer, or

(b)     a confidential communication made between 2 or more lawyers acting for the client, or

(c)     the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

A “confidential communication” is defined in s 117 as:

“…a communication made in such circumstances that, when it was made –

(a)    the person who made it, or

(b)    the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

16. By s 125 an exception to the protection provided by s 118 is made in circumstances of “misconduct”. Section 125 provides:

“Loss of client legal privilege: misconduct

(1)  This Division does not prevent the adducing of evidence of—

(a)   a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b)     a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2)    For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—

(a)    the fraud, offence or act, or the abuse of power, was committed, and

(b)   a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power.   

the court may find that the communication was so made or the document so prepared.

(3)  In this section—

power means a power conferred by or under an Australian law.”

17. Counsel for the defendants contended that the communications were confidential communications made between Mr Izod as client and Mr Zreika as lawyer (s 118(a)) for the dominant purpose of Mr Zreika providing legal advice to Mr Izod, and were, accordingly, subject to the prohibition, on disclosure provided by s 118. The prosecution contended that the communications were made in furtherance of offences (a separate offence by each defendant) against s 319 of the Crimes Act and that, therefore, by s 125(1)(a), the prohibition on disclosure provided by s 118 was lost.

18. A voir dire then took place. The issue for determination was whether evidence of the communications was admissible in proof of the s 319 charges (that is the charges that the defendants acted with the intention of perverting the course of justice). All parties proceeded on the common assumption that the issues were identical in relation to the two defendants, and that a finding that the evidence was admissible (or inadmissible) against one encompassed a similar finding in relation to the other.

19. By s 125(1), the evidence was not rendered inadmissible by s 118 if the communications were made in furtherance of the s 319 offences. By s 125(2) that could be found if:

• the communications were confidential (as defined in s 117) communications between a client and a lawyer;

• the commission of the s 319 offences was a fact in issue in the proceedings; and

• there were reasonable grounds for finding both:

(i)   that an offence (by either defendant or both) was committed; and

(ii)   that the communications (or any of them) were made in furtherance of the commission of that offence.

20. The prosecution tendered what was called an “Expert Certificate” by Dr Yu. In fact, the “Expert Certificate” was a factual account of his consultation with Mr Izod and the circumstances in which he provided the medical certificate. Dr Yu said that Mr Izod was complaining of diarrhoea and vomiting from 4.00am that morning, but said that he was “feeling better now”. This caused Dr Yu some surprise since, he said, patients usually attend when they are “feeling really bad not getting better.” Dr Yu conducted an examination of Mr Izod and found only one of the symptoms usually associated with gastroenteritis. That was increased bowel sound, which Dr Yu said could also be attributed to other causes such as withdrawal from narcotic drugs. All other objective signs were normal. Dr Yu said:

“As a doctor, sometimes you have to take a person’s word for the symptoms they provide. Some symptoms aren’t provable. In this case, I had to take [the first defendant’s] word that he had been vomiting and had diarrhoea prior to visiting me.”

He diagnosed “a mild case of Gastroenteritis”.

21. Dr Yu gave oral evidence and was cross-examined. He said that he had made a record in his notes that Mr Izod appeared to be “a bit uncomfortable all over.”

22. The evidence and the argument concluded on 29 May 2018.

21. The magistrate reserved her decision overnight. The following morning she delivered what she called an “ex tempore” judgment. She reviewed in some detail the evidence and the authorities to which she had been referred. The substance of her conclusion was that “misconduct has not been established” and, accordingly, the privilege conferred by s 118 of the Evidence Act had not been lost. The evidence of the communications was therefore inadmissible in proof of the s 319 charges.

22. Since that evidence was essentially the prosecution case, the prosecution called no evidence on the s 319 charges and the magistrate dismissed each. It is those orders that the DPP now challenges. Although he does so by two avenues, the challenges are identical. They call for examination of the reasons given by the magistrate.

The judgment

25. The magistrate referred at some length to authorities on which the parties relied. She then addressed the questions in issue. She first found that the communications were confidential, in the sense required by s 117, in the context of a client/lawyer relationship. She said that the communications were “being done in a confidential way” and that Mr Zreika was providing legal advice with respect to an application for an adjournment. The conclusion that the communications were confidential has not been challenged by the DPP.

26. The magistrate then proceeded to deal with the essential questions, which (as recorded in the transcript) she identified as follows:

“The real issue and this is the nub of the prosecution case, is, did Mr Zreika go beyond what was required and indeed Mr Izod set up a situation where he was not genuinely sick and essentially it was a device designed to circumvent the Court requirement … .” (italics added)

She went on to discuss the requirements, and the consequences of adjournments of criminal proceedings that had been fixed for hearing.

27. She then referred to some of the content of the conversations. As recorded in the transcript, said:

“The issue is whether or not this is sufficient to establish the illegal purpose that the police are asserting in this matter and I note what has been put in submissions that I need to exercise care on findings I make. I am not at the point of making a decision on the case itself. I am not at the point where I have to find things proven to the requisite criminal standard.

What is also important to note in all of this is that Dr Yu figures in all of this, what was clear from the text[s] and the phone calls taken together as a whole is that it was all going to be dependent on what the doctor said whilst Mr Zreika had raised without Mr Izod raising the question of gastroenteritis, Dr Yu was the one who was going to have to provide the medical certificate.” (italics added)

28. She then made some presently irrelevant general observations about the provision of medical certificates in the Local Court and said:

“Going back to the decision in Bell [R v Bell; ex parte Lees (1980) 146 CLR 141; [1980] HCA 26] what I need to do is to be satisfied that the advice was being part of a criminal or an unlawful proceeding or was made in furtherance of an illegal object and this is, for example, where the client has sought legal advice as a step in or preparatory to the commission of a crime of fraud.

…

Whilst at first glance in relation to the communications between the parties it might appear that there was an illegal object, namely, an attempt on the part of the solicitor and client to avoid the requirements of the Court and to get an adjournment in circumstances where it was not aware [sic]. I am not satisfied today that what has been established was in furtherance of an illegal object so I find that given the fact the communication was confidential and it was made for the predominant purpose of providing legal advice in the context of legal proceedings I find that the communications were subject to legal professional privilege which has not been waived. That is not the end of the story because I have to consider s 125 and I need to do that.” (CB 139) (italics added)

29. Her Honour then discussed some authorities to which she had been referred and said:

“Much of what I have said under s 118 I adopt and apply to my consideration of s 125 and I note that s 118 prevents the adducing of the evidence at all if it is subject to legal professional privilege. The privilege can be lost through misconduct and I note s 125(2) says, ‘For the purposes of the section if the commission of the fraud, offence or act or abuse of power is a fact in issue and there are reasonable grounds for finding that (A) the fraud, offence or act or abuse of process was committed and (B) the communication was made or the document prepared in furtherance of the commission of the crime, offence or act or the abuse of process the Court may find that the communications were so made or the documents so prepared. What I said in relation to the whole of the circumstances, whilst there was a suggestion on the part of the lawyer as to one possible illness that might be effecting (sic) Mr Izod. The fact is that it was left to Mr Izod to obtain the medical certificate. He had to go and see Dr Yu and Dr Yu not only just listened to him, he conducted a medical examination. He also made observations as to the overall wellbeing of Mr Izod and he came to the diagnosis that Mr Izod had a mild case of gastroenteritis.

…

The matter was then put before the Magistrate who considered the matter before her, she weighed up all of the information and it is clear from her statement that she considered the matters that she is required to consider when assessing whether or not matters should be adjourned. She considered the certificate, she questioned Mr Zreika, she gave the police prosecutor the opportunity to be heard and in those circumstances she was entitled to make the decision that she came to. In those circumstances I find that whilst the language used in the first part of the phone call might be susceptible to a reading that there was misconduct upon the part of the solicitor that it was could be [sic] inference might be possible that there was a suggestion of an illness and that Mr Zreika [sic – Mr Izod] was in fact well and was seeking to avoid the Court rather than attend. The fact remains that he went to a doctor and it was the doctor who made the diagnosis and there was no application made before that certificate was available and in the circumstances I FIND THAT MISCONDUCT HAS NOT BEEN ESTABLISHED AND I DECLINE TO MAKE THE FINDING PURSUANT TO S 125 OF THE EVIDENCE ACT.”

The grounds of the DPP’s challenge

30. The grounds of challenge, both with respect to s 56(1)(c) of the Appeal and Review Act, and s 69 of the Supreme Court Act, fall into four categories. The principal complaint by the DPP is that the magistrate misconceived the question she was required to determine on the voir dire and applied a test that was erroneous in law. The DPP relied on a number of passages in the reasons, all of which are contained in the extracts above. Specifically, the DPP complained of the directions the magistrate gave herself in the passages italicised above, as follows:

“The real issue and this is the nub of the prosecution case, is, did Mr Zreika go beyond what was required …;

The issue is whether or not this is sufficient to establish the illegal purpose that the police are asserting in this matter …;

…what I need to do is to be satisfied that the advice was being part of a criminal or an unlawful proceeding or was made in furtherance of an illegal object …

I am not satisfied today that what has been established was in furtherance of an illegal object …;

MISCONDUCT HAS NOT BEEN ESTABLISHED.”

31. The DPP contended that these passages indicate that the magistrate proceeded on the basis that, for the s 118 privilege to be lost, it was necessary that the prosecution establish as a fact that the communications were made in furtherance of the commission of the offence in question. The correct approach, the DPP contended, was to inquire whether there were reasonable grounds for finding that the communications were made in furtherance of the commission of that offence.

32. The defendants did not dispute that the DPP correctly articulated the test. They began with the argument that the judgment, having been delivered ex tempore, should:

“…be read in a benign way and not construed minutely and finely with an eye keenly attuned to the perception of error.”

33. In support of that contention reliance was placed on the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, which adopted as “well settled” similar reasoning in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456. Those decisions were concerned with review of administrative action, in which it is necessary to distinguish between review “upon proper principles” and a merit review of the administrative decision in question.

34. Nevertheless, I would accept that, if the magistrate’s reasons disclose that she appreciated, and, more importantly, applied, the correct test, then an occasional infelicitous slip of the tongue should not be allowed to contaminate the reasons as a whole.

35. The defendants then argued that there are to be found in the judgment passages other than those cited by the DPP that indicate that the magistrate was aware of and correctly stated the relevant test. That could be seen particularly from her recital of s 125(2). In addition, the magistrate directed herself that she was not “on the point of making a decision on the case itself” nor “at the point where I have to find things proven to the requisite criminal standard.”

Determination

36. In my opinion the correct construction of the judgment, taken as a whole, is that the magistrate did misconceive the question submitted to her and applied the wrong test. What s 125(2) required (for the purposes of this case) was an evaluation of evidence said to provide the basis for a conclusion that there were reasonable grounds for finding that the communications in question were made in furtherance of the s 319 offences. That is a lesser test than that can be discerned to have been applied from the extracts above, in which the magistrate can plainly be seen to have asked whether, in fact, the communications were made in furtherance of the offences.

37. The difficulty with the defendants’ propositions is that the magistrate’s reasons reveal, not mere infelicity of language, but, on more than one occasion, the application of a test of finality. This is, perhaps, most clearly demonstrated in the ultimate finding that misconduct had not been established, but can also be seen in the various earlier passages. That is not neutralised by the observation (in the context of s 118) that she was not on the point of reaching a final decision. That merely showed that she was aware that the decision she was making was one with respect to the admissibility of evidence. It did not establish that she applied the statutory test to that question. She did not.

38. I am satisfied that the DPP’s first ground has been made good.

39. The erroneous approach constitutes both jurisdictional error for the purposes of s 69 of the Supreme Court Act and error of law for the purposes of s 56(1)(c) of the Appeal and Review Act. That is sufficient to dispose of the summons. The remaining grounds can therefore be dealt with briefly.

40. Grounds 2 and 3 allege, respectively, that the magistrate took into account irrelevant considerations, and failed to take into account relevant considerations.

41. The irrelevant considerations asserted were:

• that Dr Yu had carried out an independent examination of Mr Izod and made a diagnosis of gastroenteritis, and

• that Magistrate Ryan was “entitled” to adjourn the hearing of the criminal charges.

42. The latter is clearly an irrelevant consideration. I am not persuaded that the first was. Among the things that the magistrate had to determine was whether there were reasonable grounds for finding that the offence of acting to pervert the course of justice had been committed. Relevant to that was whether Mr Izod in fact was suffering from gastroenteritis. And relevant to that (although far from conclusive) was Dr Yu’s physical examination of Mr Izod. I would therefore reject the first part of ground 2.

43. It is difficult to understand the import of the magistrate’s observation that Magistrate Ryan was “entitled” to adjourn the proceedings. Although it was, in my opinion, an irrelevant observation, it appears to have had little bearing on the decisions. I would therefore reject ground 2.

44. There is, however, considerable substance in the argument that the magistrate failed to take into account relevant considerations. Four such considerations were identified. These concerned:

(i)    evidence that Mr Izod had given a false history to Dr Yu about the symptoms that he had been suffering;

(ii)    that Dr Yu’s diagnosis was made, at least in part, on the basis of the false history;

(iii)    evidence derived from the telephone conversation with the female that Mr Izod was not suffering symptoms of gastroenteritis; and

(iv)    evidence in the intercepted calls that demonstrated that Mr Zreika knew that the first defendant did not have gastroenteritis.

45. All of those considerations were advanced as, and were, relevant to whether there were reasonable grounds for finding that the s 319 offences had been committed, and whether there were reasonable grounds for finding that the communications were made in furtherance of those offences.

46. The counter argument of the defendants began with the proposition that the considerations that the DPP claimed were not taken into account were “quintessentially findings of fact”. That is not correct. What the prosecution claimed in the Local Court, and the DPP here asserts, is that each of the four considerations reflects an aspect of the evidence on which it relied and which was relevant to the ultimate determination whether the s 125(2) test had been met. The defence argument proceeded, based on administrative law principles, to assert that a ground of failure to take into account relevant considerations is only made out where the relevant statute, on its correct construction, requires that those considerations be taken into account.

47. That argument is misconceived. The DPP’s point is that the four considerations were all relevant to the assessment of whether there were “reasonable grounds for” making the relevant findings. They reflect an argument advanced to the magistrate which, if considered, may have affected the outcome of the determination. Failure to take into account the four considerations was an error of law.

48. If it were necessary to do so, I would uphold ground 3.

49. The final ground is that the magistrate failed to give adequate reasons for her conclusions. I reject that ground. Erroneous reasoning is not equivalent to inadequacy of reasons. Indeed, the DPP’s point is that the reasons expose error. In my opinion the magistrate’s reasons adequately explain the path to her conclusions.

50. Section 59(2) of the Appeal and Review Act relevantly provides:

“The Supreme Court may determine an appeal against an order referred to in s 56(1) … (c) …

(a)    by setting aside the order and making such other order as it thinks just, or

(b)    by dismissing the appeal.”

51. The orders sought by the DPP are:

(i)   that the orders of the magistrate be set aside;

(ii)   that the matters be remitted to “the Central Local Court” to be dealt with according to law by a magistrate other than Magistrate Atkinson;

(iii)   an order that the defendants pay the DPP’s costs of and incidental to the summons.

52. In my opinion it is appropriate that orders to that effect be made. It is therefore unnecessary to consider what orders could or should be made with respect to the s 69 proceedings. They would not, in any event, be different in substance.

53. The orders I propose to make in each case that the order of the magistrate be set aside and the matter be remitted to the Local Court to be dealt with according to law. The location of the court and the identity of the magistrate to conduct the hearing is a matter for the administrative arrangements of the Local Court.

54. That leaves the question of an extension of time in which to bring the s 69 proceedings, which is opposed by Mr Zreika. It was accepted on behalf of Mr Zreika that the s 56(1)(c) appeal was brought within time. The issues in the two proceedings are identical. That makes the objection somewhat futile. In any event, the delay was of relatively short duration.

55. The orders I make are:

In proceedings numbered 2019/293243 (Director of Public Prosecutions (NSW) v Michael John Izod):

1.   The appeal is allowed;

2.   The orders of Magistrate Atkinson made on 30 May 2019 are set aside;

3.   The matter is remitted to the Local Court to be dealt with according to law;

4.   The first defendant (Michael John Izod) pay the plaintiff’s costs of the proceedings.

In proceedings numbered 2019/293528 (Director of Public Prosecutions (NSW) v Mohammed Zreika):

1.   The appeal is allowed;

2.   The orders of Magistrate Atkinson made on 30 May 2019 are set aside;

3.   The matter is remitted to the Local Court to be determined according to law;

4.   The first defendant (Mohammed Zreika) pay the plaintiff’s costs of the proceedings.

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Amendments

09 April 2020 - 9/4/2020 - first and middle names omitted from case name - judgment republished

Decision last updated: 09 April 2020