Director of Public Prosecutions (NSW) v So
[2014] NSWLC 16
•01 October 2014
Local Court
New South Wales
Medium Neutral Citation: Director of Public Prosecutions (NSW) v So [2014] NSWLC 16 Hearing dates: 03/09/2014 Decision date: 01 October 2014 Jurisdiction: Criminal Before: Magistrate Buscombe Decision: The Accused's application for production of documents is refused.
Catchwords: EVIDENCE - Evidence Act 1995, Part 4.6, Div 1 - request for production of documents - committal proceedings - implied powers Legislation Cited: Bail Act 2013
Criminal Procedure Act 1986
Evidence Act 1995Cases Cited: Canon v Tahche (2002) 5 VR 317
Carter v Hayes (1994) 61 SASR 451
DPP v Shirvanian (1998) 44 NSWLR 129
Gaffee v Johnson (1996) 90 A Crim R 157
Grassby v R (1989) 168 CLR 1
Jackson v Sterling Industries Ltd (1986) 69 ALR 92
R v Brown [1998] AC 367
Rice v Chute (1995) 119 FLR 181
Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307Category: Interlocutory applications Parties: Tony So (the Accused)
Director of Public Prosecutions (NSW) (DPP)Representation: Mr J M Giorgiutti (for the Accused)
Ms G Mitchell (for the DPP)
File Number(s): 2014/116644
Judgment
The Accused (A) has brought an application under s 169 of the Evidence Act1995 (NSW) (EA) for "an order that the DPP produce to the applicant within 7 days the documents sought by the accused by email dated 25 June 2014".
While the primary basis of A's application was s 169 of the EA, he also submitted that this Court had an implied power to order the production of the documents sought in order to ensure that A receives a fair trial, and to ensure that the Director of Public Prosecutions (DPP) complies with its obligation of disclosure to the Court.
Before considering the arguments advanced by A it is necessary to outline briefly the context in which the application is to be considered.
A is charged with the following offences:
That between 4.30pm and 4.35pm on 16 April 2014 at Lilyfield he did participate in a criminal group with Michael Shi and Moheen Mohammed, and knew or ought to reasonably have known that it was a criminal group, his participation in which contributed to the occurrence of a criminal act, to wit the large commercial supply of 2018.7 grams of methylamphetamine.
Between 4.30 pm and 4.35pm on 16 April 2014 at Lilyfield he did supply an amount of a prohibited drug, to wit, 2018.7 grams of methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
I should note that at the time of the application the brief of evidence had not yet been served, it having been ordered to be served by 25 September. A remains bail refused and has a release application pending. The proceedings are committal proceedings.
On 25 June 2014 the solicitor for A wrote to the DPP requesting that the DPP produce to A a list of documents. That list of documents is identical to a list of documents contained in a schedule to a subpoena to the New South Wales Crime Commission (NSWCC). Some paragraphs of that subpoena have been answered by the NSWCC while others were set aside by me upon application by the NSWCC, on the basis that they lacked a legitimate forensic purpose and constituted an attempt to in effect gain discovery against a third party.
By letter dated 14 July 2014 the Director replied to A's request. The letter noted that the Director did not possess any of the items referred to in paragraphs 2, 3, 6, 7, 8 and 9 of the request. It also noted that the items set out in paragraphs 1 and 5 of the request would not form part of the police brief of evidence. In relation to paragraph 4, the Director noted that the warrants would be served as part of the brief of evidence once the telephone intercept transcripts were completed. In relation to paragraph 10 of the request, the Director indicated that he understood no search warrants were executed upon A's premises, and consequently there were no documents that fell within that paragraph of the request. The Director otherwise in essence declined to comply with A's request.
The submissions concerning the provisions contained in Division 1 of Part 4.6 of the EA
Section 169 of the EA is contained in Division 1 of Part 4.6 of the EA which is headed: "Ancillary provisions". Section 169 of the EA provides as follows:
169 Failure or refusal to comply with requests
(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:
(a) an order directing the party to comply with the request,
(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166,
(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence,
(d) such order with respect to adjournment or costs as is just.
(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.
(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with.
(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:
(a) the document or thing to be produced is not available to the party, or
(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or
(c) the person to be called as a witness is not available.
(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:
(a) the importance in the proceeding of the evidence in relation to which the request was made, and
(b) whether there is likely to be a dispute about the matter to which the evidence relates, and
(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and
(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and
(e) if the request relates to evidence of a previous representation-whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and
(f) in the case of a request referred to in paragraph (g) of the definition of "request" in section 166-whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and
(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and
(h) the nature of the proceeding.
In order to understand the scope of the operation of s 169 of EA it is necessary to have regard to the definition of request in s 166 EA and what is contained in s 167 and s 168 of the EA. Those provisions provide as follows:
166 Definition of request
In this Division:
"request" means a request that a party ("the requesting party") makes to another party to do one or more of the following:
(a) to produce to the requesting party the whole or a part of a specified document or thing,
(b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing,
(c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing,
(d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time,
(e) in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of "document" in the Dictionary-to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept,
(f) in relation to evidence of a previous representation-to call as a witness the person who made the previous representation,
(g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92 (2) applies-to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.
167 Requests may be made about certain matters
A party may make a reasonable request to another party for the purpose of determining a question that relates to:
(a) a previous representation, or
(b) evidence of a conviction of a person for an offence, or
(c) the authenticity, identity or admissibility of a document or thing.
168 Time limits for making certain requests
(1) If a party has given to another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request to the party relating to the representation if the request is made within 21 days after the notice was given.
(2) Despite subsection (1), the court may give the other party leave to make a request relating to the representation after the end of that 21 day period if it is satisfied that there is a good reason to do so.
(3) If a party has given to another party written notice of its intention to adduce evidence of a person's conviction of an offence in order to prove a fact in issue, the other party may only make a request relating to evidence of the conviction if the request is made within 21 days after the notice is given.
(4) Despite subsection (3), the court may give the other party leave to make a request relating to evidence of the conviction after the end of that 21 day period if it is satisfied that there is good reason to do so.
(5) If a party has served on another party a copy of a document that it intends to tender in evidence, the other party may only make a request relating to the document if the request is made within 21 days after service of the copy.
(6) If the copy of the document served under subsection (5) is accompanied by, or has endorsed on it, a notice stating that the document is to be tendered to prove the contents of another document, the other party may only make a request relating to the other document if the request is made within 21 days after service of the copy.
(7) Despite subsections (5) and (6), the court may give the other party leave to make a request relating to the document, or other document, after the end of the 21 day period if it is satisfied that there is good reason to do so.
For a request to be a request for the purposes of s 169 it must fall within s 166 of the EA. The letter by A simply sought the production of certain documents. The relevant part of s 166 to consider is therefore, (a). The use of the word "specified" suggests there should be a specific identification of the document sought to be produced if a request is to fall within s 166. It is clear in my opinion that [2], [8] and [9] of A's request do not specify a document or documents in compliance with the section. It may be that other paragraphs do not contain the degree of specificity that the provision requires, but it is not necessary in my opinion to come to a firm conclusion on that issue, in view of my opinion about the overall operation of Division 1 of Part 4.6 of the EA.
Section 167 of the EA provides that a request may be made "for the purpose of determining a question that relates to" a previous representation, or evidence of a conviction of a person for an offence or the authenticity, identity or admissibility of a document. I note in that regard the definition of "previous representation" and "representation" contained in the Dictionary of the EA. Basten JA pointed out in Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [24], the nature of a request under the provisions must be consistent with the purposes identified in s 167 of the EA. I note nowhere in the request by A is any such purpose identified. No question related to one of the matters listed in s 167 of the EA was identified in the request nor in A's written submissions.
Section 168 provides for time limits for the making of the requests provided for in Division 1 of Part 4.6 of the EA, being those requests that fall within the definition of s 166 and for a purpose identified in s 167. Significantly, in terms of understanding the operation of Division 1 of Part 4.6 of the EA, the commencement of the time limits for the making of such requests are prefaced by one of the following phrases; either "if a party has given to another party written notice of its intention to adduce evidence of" or "if a party has served on another party a copy of the document it intends to tender in evidence". The terms of ss 166, 167 and 168 are such that the application of the provisions in Division 1 of Part 4.6 of the EA is limited to situations where one party has served on the other notice of its intention to adduce in evidence particular categories of documents or things. The whole purpose of the Division is to allow the party upon whom such notice has been given to take steps to have the documents (or things) concerned produced so that the questions that fall within the scope of s 167 can be considered.
This analysis in my opinion is consistent with Basten JA's analysis of the Division (with which Spigelman CJ and Ipp JA agreed) in Trimcoll Pty Ltd v Deputy Commissioner of Taxation ibid. At [22] Basten JA set out the primary purpose of the Division in the following terms:
Request to call evidence: Evidence Act
[22] Part 4.6, Division 1, was primarily intended to provide certain procedural protections to a party whose interests might be adversely affected by the broader scope provided by the Evidence Act for the admissibility of documents which are not originals or which might previously have been rejected as offending the rule against hearsay and not falling within any relevant exception: see The Law Reform Commission (Cth), Report No. 26 Interim Evidence (AGPS, 1985) pars 343, 648, 658 and 707, and see Anderson, Hunter & Williams, The New Evidence Law (2002, Lexis Nexis) at pp 579-580.
The above analysis of the scope and application of Division 1 of Part 4.6 of the EA results in the conclusion that A's application is misconceived. A's submissions sought to in effect suggest that there is some general power to request a party to produce documents enshrined in the provisions. In my opinion such an approach is inconsistent with the proper construction of the provisions, and inconsistent with the Court of Appeal's approach to the provisions, which of course is binding on me. The procedure enshrined in Division 1 of Part 4.6 of the EA applies in only very limited circumstances as I have endeavoured to explain. The request made by A clearly does not conform with the requirements of s 166 and s 167 of the EA.
Some attempt was made in oral submissions to engage with the requirement of s 167 in that it was submitted that the request concerned the admissibility of the Police Facts Sheet which had been provided to A which would be used on a release application by A. In relation to the Bail Act, there is no admissibility issue that arises in relation to the material that a Court can rely upon. Section 31 of the Bail Act expressly says that the principles or rules of law regarding the admission of evidence do not bind a bail authority, which includes a court. The submission was a belated attempt to bring the request within the scope of Division 1 of Part 4.6 and clearly is unsuccessful.
The submission concerning the implied powers of this Court
I noted earlier that A also submitted this Court had an implied power to require the DPP to give disclosure in accordance with the prosecutor's duty of disclosure to ensure that A received a fair trial. A in his submissions set out an extract concerning the nature of the prosecution's disclosure obligation from the Victorian decision of Canon and Another v Tahche and Others (2002) 5 VR 317.
In Canon the Victorian Court of Appeal said in relation to the prosecutor's duties:
[56] What is sometimes called the "prosecutor's obligation to act fairly", one aspect of which is the prosecutor's "duty of disclosure", does not spring from any statutorily given power, but from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial....
[57] The prosecutor's "duty of disclosure" has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the "duty", it is a duty owed to the court and not a duty, enforceable at law at the instance of the accused. This, we think, is made apparent when the so-called "duty" is described (correctly in our view) as a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires.
I accept that the prosecutor's duty of disclosure, which is part of the prosecutor's overarching duty to assist a trial court to ensure that an accused receives a fair trial, is a duty owed to the trial court.
A's written submissions made reference to a number of interstate and English authorities to support his submission that this Court possessed the implied power he contended for. In assessing the relevance of those authorities to the powers that this Court has, it is necessary to consider the context in which the particular comments relied upon were made. It will also be necessary to consider the leading, binding authorities concerning the implied powers of this Court. At the outset I note that none of the cases referred to concerned a magistrate conducting committal proceedings.
A relied upon the following general statement by Lord Hope of Craighead in R v Brown [1998] AC 367 at 380 when considering a prosecutor's duty of disclosure. His Lordship there said: "If fairness demands disclosure then a way of ensuring that disclosure will be made must be found." His Lordship's comments were made in the context of an appeal from a trial on indictment. The ground of appeal being considered by the House of Lords in that case was that the prosecution had not revealed to the accused the fact that police had spoken to alibi witnesses nominated by the accused, and had obtained information from them that substantially undermined their credibility. One witness had told the police that he had been too drunk to recall the accused's whereabouts at the time of the incident giving rise to the charge. The second alibi witness had told police he had withdrawn his initial statement implicating the accused, because he had received threats. Both were cross-examined by the Crown in relation to what they had told the police, although it had not been revealed to the accused. The House of Lords found that there had been no breach of the prosecutor's duty of disclosure. The comments of his lordship were general and in the context of a trial court's duty to ensure that an accused receives a fair trial.
A also relies upon the following observations (removing the reference to authorities) by King CJ in Carter v Hayes SM and Another (1994) 61 SASR 451 at 456:
Disclosure by those conducting a prosecution of material in the possession of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial and is an aspect of the prosecution's duty to ensure that the "Crown case is presented with fairness to the accused." Moreover the court has power to order the production to the defence of material in the prosecution's possession or power if the interests of justice so require. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.
The context in which King CJ made those comments was as follows. The case concerned an appeal in relation to a summary prosecution of an indictable offence in the South Australian Magistrates Court. The accused's representatives had requested the police to provide prior to the summary trial, the witness statements, including the complainant's original complaint, the interview conducted with the accused, and photographs of the complainant. The police only provided a copy of the accused's interview. The accused then issued a summons for production in the proceedings seeking the remaining documentation. On application by the police prosecutor the summons was set aside by the Magistrate, and the accused appealed that decision to the South Australian Supreme Court. The decision of the Magistrate was quashed and the Magistrate was directed to consider the summons for production according to law.
The decision is a long way removed from the case that is before me. Firstly it involved a summary trial rather than committal proceedings. Secondly, it concerned the approach to be taken to a summons to produce documents, rather than any implied power in the court. Thirdly it was at a time when there was, apparently in South Australia, no obligation on the prosecution to provide a brief of evidence to an accused person prior to any summary hearing. That requirement, with limited exceptions, is now enshrined in this State in the Criminal Procedure Act 1986. The observations by King CJ in my opinion must be considered having regard to the context in which they occur. When that is done they do not provide support for the implied power relied upon by A before me.
A also relied upon the following observations by Gray AJ in Rice v Chute (1995) 119 FLR 181 at 185 when His Honour was sitting as a judge in the Supreme Court of the Northern Territory: "An application of the above propositions to a prosecution in the Court of Summary Jurisdiction should, in my view, lead to the inspection of statements of prosecution witnesses being 'allowed as a matter of course'." His Honour's comments were made in the context of considering an appeal from a summary conviction by a Magistrate of an accused for an offence of unlawfully possessing parts from a stolen motor vehicle. During the course of the hearing of those proceedings counsel for the accused had called on a summons to produce that had been issued under s 23 of the Justices Act 1928 (NT). The summons had inter alia sought the production of documents by the police including the statement of witnesses to be called at the hearing and records of seized property from a relevant address. The documents had been produced by the police to the Court without objection, however the Magistrate was of the opinion that the procedure was improper and that the only way a cross-examiner could obtain a copy of a witness statement was by calling for it during the course of cross-examination.
Gray AJ upheld two grounds of appeal which submitted that the Magistrate erred in ruling that it was not possible to use a summons to produce to obtain the production of witness statements and that he had erred in the exercise of his discretion.
Gray AJ in addition to the remarks upon which A relies, said two paragraphs after the observations relied upon by A:
Many weighty criminal cases are nowadays dealt with in the court of Summary Jurisdiction and, in my view, it is desirable that the practice in that court should conform to that prevailing in other criminal proceedings. The foregoing remarks are confined to statements by prosecution witnesses.
When the observations of Gray AJ relied upon by A are seen in context they are very removed from the proceedings before me. The appeal Gray AJ was considering concerned an appeal from a conviction recorded in a summary trial. The focus of the appeal was the use of a summons to produce under the Northern Territory's then Justices Act to obtain a witness statement. The decision was another decision where in the jurisdiction concerned, at the relevant time it appears there was no requirement that a prosecutor provide to an accused in a summary hearing the police brief. I note in particular that Gray AJ specifically limited his comments to the obtaining of witness statements. Properly understood the observations by Gray AJ relied upon by A do not support the implied power he asserts this Court possesses.
A also relied upon the following observations of Smith J in Gaffee v Johnson (1996) 90 A Crim R 157 at 165:
The inherent power (or implied power) which a court possesses, including a magistrates court, is concerned with adjectival law which includes pre-trial procedures and I do not have any difficulty with the proposition that the inherent power of the court would extend in the absence of any other power to requiring the informant to produce documents. That power is to be exercised to achieve justice according to law in the particular case. Thus, it seems to me that the magistrates court had inherent power to make the order in question.
It is necessary to consider the context in which the statements relied upon were made. His Honour was hearing an appeal by a prosecutor in relation to an order a Victorian Magistrate had made during the course of pre-trial steps in a summary prosecution of a radar detected speeding offence. An issue had arisen in the proceedings as to the modifications and alterations that had occurred to the US model of the radar which became the model used by the Victorian Police. The Magistrate made an order that the prosecution provide to the defence documentation to explain, detail and describe any modification to the US radar to produce the device used by Victorian police. During the hearing the prosecutor had raised the issue of the source of the Magistrate's power to make the order and the Magistrate stated that he relied upon an inherent power in the interests of justice.
The comments relied upon by A from Smith J indicate that His Honour agreed with the Magistrate that the Magistrate had an inherent power in the interests of justice to make the order he made. Smith J also considered that the Magistrate had power to make the order he made pursuant to s 136 of the Victorian Magistrates' Court Act which provided that the Court may, except when otherwise prevented from doing so by another statutory provision, give any direction for the conduct of the proceeding which it thinks is conducive to its effective, complete, prompt and economical determination.
Again the comments relied upon were in the context of a summary prosecution rather than committal proceedings. I note also Smith J's reliance upon an "inherent jurisdiction" in the Victorian Magistrates Court.
This Court, being an inferior statutory court, does not exercise inherent jurisdiction or inherent powers: see Grassby v R (1989) 168 CLR 1 per Dawson J and DPP v Shirvanian (1998) 44 NSWLR 129. This Court being a statutory inferior court possesses express and implied powers. In exercising its jurisdiction and express powers, this Court possesses, by implication, whatever jurisdiction or powers that are necessary for the exercise of its expressly conferred jurisdiction and powers; Jacksonv Sterling Industries Ltd (1986) 69 ALR 92 as applied in Shirvanian ibid.
The powers this Court possesses by way of implication vary depending upon whether it is conducting summary proceedings or committal proceedings. That is made expressly clear by the decisions in Grassby and Shirvanian. In Grassby it was determined that this Court has no power to permanently stay committal proceedings as an abuse of process. Shirvanian determined that this Court has an implied power to permanently stay a summary prosecution as an abuse of process. Mason P explained that the critical distinction between Shirvanian and Grassby was the difference between committal proceedings and summary trial proceedings. Mason P said that the power to permanently stay summary trial proceedings was "implied from the very nature of the exercise of jurisdiction as a court of trial": Shirvanian at 18.
I accept that the DPP has an obligation of disclosure to a trial court to ensure that A is not tried unfairly. The dicta that A has pointed to and Shirvanian satisfies me that this Court has implied power to ensure that an A is not tried unfairly in this Court, including the ultimate sanction of ordering a permanent stay of proceedings. I am satisfied that in an appropriate case, during a summary criminal trial, this Court has an implied power to direct that certain material be provided by the prosecutor to an accused person, if it is of the opinion that a failure to do so would mean that the summary trial of an accused would be unfair.
However, in relation to the A this Court is not exercising jurisdiction as a court of trial but is conducting committal proceedings. As was explained in Grassby, the jurisdiction this Court exercises in committal proceedings is fundamentally different from the jurisdiction this Court exercises in summary trial proceedings. As Dawson J explained in Grassby, committal proceedings do not constitute a judicial inquiry but are an exercise of an executive or ministerial function: Grassby at 11. The powers that a magistrate exercises in committal proceedings do not involve the exercise of a judicial function.
The difference between the jurisdiction this Court exercises when conducting committal proceedings, and the jurisdiction it exercises when hearing a summary trial, is fundamental. It leads in my opinion to the conclusion that there is no implied power in this Court to order the DPP to produce to an accused documentation, even if the Court is of the opinion that the failure to do so would result in an unfair trial of the Accused. If the failure to produce material to an accused by the Director would result in an unfair trial, that is a matter that should be taken up with the trial judge should there be a trial.
Nothing I have said here, however, in any way detracts from the ability of an accused to issue appropriate subpoenas to have produced during the committal proceedings documents he seeks to have access to for the purposes of the committal proceedings. That is specifically provided for in the Criminal Procedure Act: see s 59. Of course the subpoenas must be subpoenas that comply with the legal requirements associated with subpoenas. Here, as I noted earlier, A had issued a subpoena to the NSWCC in identical terms to his request to the DPP, a subpoena which I found lacked a legitimate forensic purpose and was a "fishing expedition" as that term is used in the authorities.
Even if I am wrong about there being no implied power to make the order sought by A in committal proceedings, in my opinion there would be no proper basis for making the order sought at this point in time. No brief of evidence has even been served, and the issues that are likely to arise at any trial of the accused are not capable at this point in time of being ascertained with any degree of certainty. The Court is simply unable at this point in time, even assuming the power existed, to determine that if the DPP did not provide the documents referred to in A's request any trial would be an unfair one.
For these reasons A's application is refused.
Buscombe LCM
Downing Centre Local Court
1 October 2014
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Decision last updated: 13 October 2014
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