Fantakis v Local Court of New South Wales

[2020] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation:

Fantakis v Local Court of New South Wales [2020] NSWSC 931

Hearing dates:

17 July 2020

Decision date:

22 July 2020

Jurisdiction:

Common Law

Before:

Hoeben CJ at CL

Decision:

(1)   Leave to appeal against the judgment of his Honour Rodgers LCM is refused.

(2)   The stay of proceedings ordered on 17 July 2020 is removed.

Catchwords:

EVIDENCE – plaintiff facing two charges of intimidate police – subpoena issued by plaintiff – whether legitimate forensic purpose – application to set aside subpoena by Commissioner of Police – order by magistrate setting subpoena aside – credit of complainant in intimidation charges important – whether reasonable grounds to think that documents relevant to credit of complainant will be found – whether documents sought in subpoena are relevant to intimidation charges – APPEAL – interlocutory application before Local Court – leave to appeal necessary pursuant to s 53(3)(b) of Crimes (Appeal and Review) Act 2001 (NSW) – limitation on role of court hearing application for leave to appeal – leave to appeal refused.

Legislation Cited:

Crimes Act 1900 (NSW) – s 60(1)

Crimes (Appeal and Review) Act 2001 (NSW) – s 53(3)(b)

Supreme Court Act 1970 (NSW) – s 69

Supreme Court Rules 1970 – Pt 51, r 6(1), r 6(2)

Cases Cited:

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65

Feeney v NSW Police [2017] NSWSC 190

Franklin v Commissioner of Police and Anor [2018] NSWSC 310

Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064

NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25

PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286

R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256

R v Saleam [1999] NSWCCA 86

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Category:

Principal judgment

Parties:

Terry (Elefterios) Fantakis – Plaintiff
Local Court of NSW – First Defendant
Commissioner of NSW Police – Second Defendant
Detective Senior Sergeant Mark Dukes – Third Defendant

Representation:

Counsel:
Plaintiff – Self-represented
R Bhalla – Second Defendant

Solicitors:
Plaintiff – Self-represented
First Defendant – Submitting Appearance
Second Defendant – Crown Solicitor
Third Defendant – Submitting Appearance

File Number(s):

2020/117656

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

16 December 2019

Before:

Rodgers LCM

File Number(s):

2020/117656

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

By an Amended Summons dated 12 June 2020, the plaintiff seeks leave to appeal from an order of his Honour Rodgers LCM on 16 December 2019 setting aside a subpoena issued at his request on 5 November 2019 to the second defendant, the Commissioner of Police.

2. The application for leave is brought pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). The application is out of time by three months (Pt 51, r 6(1) Supreme Court Rules 1970).

3. In that pleading, the plaintiff also sought to invoke the Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).

4. By a separate Notice of Motion, dated 12 June 2020, the plaintiff seeks a stay of his Local Court criminal proceedings (in which the subpoena issued) pending the outcome of this application. The Local Court proceedings are part heard before his Honour and are due to resume on 27 July 2020.

5. In the course of the proceedings before me on 17 July 2020, the plaintiff abandoned any reliance upon s 69 of the Supreme Court Act. I also indicated, without opposition from the defendant, that I proposed to grant to the plaintiff an extension of time pursuant to Pt 51 r 6(2)(a) of the Supreme Court Rules within which to bring these proceedings. My reason for doing so is that the plaintiff appears to have made a genuine mistake as to how much time he had within which to file an appeal. Because the plaintiff is in custody, I accept that there are additional difficulties confronting him in meeting time limits.

6. I also indicated to the parties that I proposed to grant a stay of the Local Court proceedings, due to resume on 27 July 2020, until further order of the Court. My reason for doing so was that I was not sure whether I could deliver judgment in the matter in sufficient time to allow those proceedings to resume on 27 July.

7. Accordingly, the issues which arise for this Court’s determination are:

1. whether the plaintiff ought to be granted leave to appeal from the interlocutory order setting aside the subpoena made by Rodgers LCM on 16 December 2019; and

2. whether if such leave were granted, the appeal should be upheld or dismissed.

Factual background

8. On 7 June 2013, the plaintiff was charged with two offences of intimidate police under s 60(1) of the Crimes Act 1900 (NSW) being the two substantive offences that are currently part heard before his Honour in the Local Court. The first offence (Sequence 2) asserts a timeframe between 25 July and 31 August 2002. The second offence (Sequence 3) has a timeframe between 1 September 2012 and 20 May 2013. The complainant is Detective Sergeant McGee. Detective Sergeant McGee was also in charge of a homicide investigation (Strike Force Flaggy) which commenced on 13 August 2011 and resulted in the arrest and conviction of the plaintiff for the offence of murder in relation to which he was incarcerated on 3 October 2013.

9. In the Local Court proceedings, the plaintiff is charged with a co-offender, Mr Woods. The matters have been before the court on many occasions and have been listed for hearing on many occasions. Part of the delay in having the matter determined was due to the murder charge which at the time was pending in this Court. The hearing for the intimidate police charges commenced before Rodgers LCM on 22 July 2019 and ran for three days. It was then adjourned part heard to 9 December 2019. The subpoena, the subject of this application, was filed by the plaintiff in the Local Court on 15 November 2019. The matter was listed for return of subpoena on 28 November 2019. On that date, counsel retained by the Commissioner appeared and applied to set aside the subpoena. The hearing of that matter proceeded before Rodgers LCM on 9 and 16 December 2019. A copy of the schedule to the subpoena is annexed hereto and is marked “Annexure A”.

10. A substantial quantity of documents was placed before his Honour and written submissions were received both from the plaintiff and from the Commissioner. One of those documents to which Rodgers LCM specifically referred, was a document entitled “Subpoena Submission”. It comprised not only submissions but had annexed to it many documents including a further written submission in the form of a letter dated 27 November 2019 addressed to the Crown Solicitor’s Office. That document set out each item on the schedule of the subpoena and identified what the plaintiff asserted was its legitimate forensic purpose.

11. Rodgers LCM did not refer in detail to each of the supporting documents provided by the plaintiff but indicated “I have had very close regard to the entirety of the material” (16/12/19, T12.48). It is apparent from other parts of his Honour’s judgment that he had done so.

12. His Honour set out the relevant principles applicable to setting aside a subpoena, together with a brief analysis of the cases, i.e. Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65; R v Saleam [1999] NSWCCA 86 and Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85. Those principles were:

1. parties seeking access to documents or the issuing party must identify the legitimate forensic purpose for which access to the documents was sought;

2. it must be shown by the party seeking access that it is “on the cards” that the documents sought would materially assist that party;

3. it is not permissible to subpoena documents for what has been referred to as “a fishing expedition”; and

4. relevance alone is not sufficient to require compliance with the subpoena.

13. It was the plaintiff’s case before his Honour that the intimidation charges were instituted for collateral purposes. The plaintiff asserted that they were generated on 6 June 2013, the day following his attendance at the Parramatta Local Court where he was granted access to a telephone application in relation to two search warrants that had been applied for by Constable Scipione on 13 August 2011. The plaintiff submitted that this warrant application was then made the subject of a non-disclosure order. It was the plaintiff’s contention before his Honour that the intimidation charges were a knee-jerk reaction by Strike Force Flaggy because of what he had discovered on 5 June 2013. The plaintiff submitted that correct procedures had not been followed when the application for the search warrants was made.

14. The plaintiff submitted that officers from Strike Force Flaggy, including the complainant, were the persons doing the intimidating. The plaintiff submitted that this bad behaviour would be revealed by the production of the documents sought in the subpoena. The plaintiff submitted that it would be the inability of the police to produce some of the documents sought that would also assist the defence case.

15. The plaintiff submitted that the credibility of Detective Sergeant McGee was fundamental in the intimidation matters. He identified the legitimate forensic purpose for issuing the subpoena as seeking documents which would allow him to test the credibility, reliability, integrity and intention of Strike Force Flaggy and Detective Sergeant McGee.

16. His Honour recognised that the credibility of Detective Sergeant McGee would be a factor that he was going to have to consider in relation to a number of issues but particularly the requirement for the prosecution in the intimidation counts to provide proof that she was in fact intimidated.

17. In order to understand the matters raised in the plaintiff’s appeal, it is necessary to substantially set out his Honour’s judgment:

“In summary, the applicant states that it is his case that the charges, the subject of these proceedings, were instituted for a number of collateral purposes. He states that they were generated on 6 June 2013, a day following his attendance at the Parramatta Local Court on 5 June 2013 where he states he was granted access to a telephone application in relation to two search warrants that had been applied for by Constable Benjamin Scipione on 13 August 2011. He states that this warrant application was then made the subject of a non-disclosure order. It is his contention that these charges, those are the ones before this Court, were a knee jerk reaction by Strike Force Flaggy because of what he h ad discovered on 5 June 2013. As stated, Strike Force Flaggy was the strike force set up as part of the murder investigation.

He, secondly, states that the officers from Strike Force Flaggy, including the complainant, in the substantive proceedings were the intimidating and provoking parties. He states that this will be revealed by the production of the documents sought in the subpoena, including in an assertion that it will be the inability of police to produce some of the documents sought that will assist the defence case. Mr Fantakis states that the credibility of the complainant is fundamental in the substantive matter. He states that the legitimate forensic purpose to the subpoena is to seek documents that will allow him to test the credibility, reliability, integrity and intention of Strike Force Flaggy and the complainant. The credibility of the complainant will be a factor that I am going to need to consider in relation to a number of issues, but almost exclusively as to the requirement of the prosecution in the substantive charges as to whether there is proof that the complainant was, in fact, intimidated.

It is very difficult to see how the credibility of the complainant can go towards any other issue or element of the offences that are going to be before the Court. As stated, the case from the defence, in part it seems, is that these charges were, and presumably still are, being pursued from their instigation and throughout the period to the present for a collateral purpose. Mr Fantakis is seeking through the subpoena to gain access to the documents or to rely on the expected non-production of documents and to use those in the cross-examination of the complainant, and potentially other officers, about matters that go to the compliance with laws, regulations and standard operating procedures, mainly connected with the execution of warrants, and including crime scene warrants.

These relate to investigations of other matters for which he was charged and for which his co-accused was charged. The charges for hearing in this Court relate to allegations of intimidation of a police officer. A Court must keep to the issues that are relevant in these proceedings. It is the case that the issues of the complainant’s credibility has been very clearly raised. He states that the documents sought will allow him to test the credibility and reliability of the complainant and as stated, I will need to consider that in relation to the hearing, and of course he will have the opportunity to cross-examine the complainant on relevant issues. It is potentially the case that there are some overlapping issues with aspects of other investigations, including the murder investigation and the matters that are before this Court.

The two cannot be conflated in my view in the way that Mr Fantakis is seeking to do and at present I am unable to see how the credibility and activities of Strike Force Flaggy in a wider sense is relevant to the issues that I will need to determine in the hearing before this Court. It is the case that even if a search warrant or a crime scene warrant that was executed during Strike Force Flaggy, even if it did not comply, for example, with standard operating procedures or regulations, it is not necessarily the case that this would have an impact on the issues that I have to decide in relation to the hearing of the two intimidate police charges, and in particular as to the credibility of the complainant.

This application relates to whether a subpoena should be set aside and as stated, Mr Fantakis asserts that these two charges, which he says are pursued for a collateral purpose and that the material sought will go to what he asserts, is relevant on the basis of irregularities and non-compliance with various obligations that the police may have had with regard to investigations in relation to other charges and as stated, I am unable to see on the material before me the relevance of those issues to the factors that I am going to be deciding in relation to the hearing of the two intimidate police charges. I will address the items in the subpoena in groups that are connected as follows.

Items 1, 2, 3, 4, 5, 6 and 7 seek documents relating to search warrants during the course of Strike Force Flaggy between 13 August 2011 and 3 October 2013, being crime scene warrants, occupier’s notices, property seizure and exhibit receipts, video recordings and COPS entries, eagle.i entries and crime scene logs relating to those warrants amongst other documents. Mr Fantakis asserts that these items relate to asserted non-compliance with laws and regulations relating to the execution of warrants during the course of Strike Force Flaggy and that this non-compliance will be a material issue in the hearing, including in relation to the credibility issues that he may raise, particularly with regard to the complainant.

He states that the non-production or non-existence of these items, including for example, receipts for items seized and video recordings of the search warrants or crime scene warrants, that they will go to the issue of the complainant’s credit. In his submissions Mr Fantakis attaches an affidavit of the complainant and a transcript of evidence from the complainant, both in relation to other proceedings, and I have had regard to those annexures and the other material contained in the bundle relied on by Mr Fantakis and I have very carefully considered his submissions. I note in particular his assertions contained in paras 119 and 120 of his subpoena submissions document. On the material before me I am not satisfied that a legitimate forensic purpose has been demonstrated by Mr Fantakis.

In relation to the question of whether, generally speaking, the officers attached to Strike Force Flaggy, of which I can assume there are numerous, were acting in certain ways, including that they were not complying with regulations or standard operating procedures with regard to crime scene warrants or search warrants that formed part of that investigation, it has not been demonstrated to me that this is of relevance in relation to the issues that need to be determined at the hearing for the two charges of the intimidate police. I am therefore not satisfied that it is on the cards that the material will assist the defence in relation to the issues that he seeks to raise at the hearing as to the relevant issues, that being in particular the credibility of the complainant.

In relation to items 8, 9 and 10, these are seeking documents in relation to the destruction of an exhibit in 2011. It should be noted that Mr Fantakis has attached to his submission a subpoena that was issued to the police in relation to the murder charges in 2013 and items connected to eight, nine and ten were sought also in that subpoena. He is of the view that they will not be produced. Mr Fantakis addresses his reasons in detail for why he is seeking these documents, particularly in para 128 and onwards in his written submissions. In para 137, for example, he states as follows:

“It will be my submission that the non-existence of these documents was an intentional non-disclosure to prevent the illegal conduct by Detective Sergeant McGee and Strike Force Flaggy from being exposed and to deny my defence of relevant documents as to the credit and integrity of both Detective Sergeant McGee and Strike Force Flaggy.”

In my view the respondent has not satisfied me that there is a legitimate forensic purpose relating to the seeking of these documents. These documents relate to ostensibly material surrounding the destruction of an exhibit as to another charge. Mr Fantakis indicates that he seeks these documents as he believes they will allow for the commencement of a train of inquiries and that these documents will assist in the cross-examination of the complainant, in particular evidence to her mindset. As stated, the complainant’s credibility is an issue that I am going to have to consider at the hearing but I am not satisfied that it is on the cards that these documents will go in any meaningful and relevant way to that issue and it has not been shown to me that the documents sought in items 8 to 10 have any other relevant connection to the issues that I am going to need to determine at the hearing for the two intimidate police charges.

For similar reasons in relation to items 12, 13 and 14, I am not satisfied that there is a legitimate forensic purpose in the seeking of these documents. The documents sought are connected with the arguments he has raised in relation to items 8, 9 and 10. Similar to those items, I am not of the view, and he has not satisfied me that it is on the cards, that the documents sought under these items will go in any meaningful way towards any issue in the substantive hearing, and in particular as to the issues connected with the complainant’s credit. In relation to items 15 and 16, these were items sought and are items that were previously served on Mr Woods in a brief service order in 2012.

Mr Fantakis has indicated today in Court that he no longer seeks one of these items and that they have been provided to him, and he has handed those documents up in Court today and they have formed an annexure to his submissions, and I have had regard to those documents also. I will address them at any rate. He states that these documents will permit for a fruitful cross-examination of the complainant in relation to her conduct prior to the alleged intimidation offences and to her credibility and reliability. In my view there is nothing in the material before me that sets out the legitimate forensic purpose in seeking these documents. I can see no relevance in these documents in the issues that I need to decide as to the two charges that Mr Fantakis is charged with.

In relation to item number 17 in the schedule to the subpoena, Mr Fantakis seeks the production of all documents relied on by Constable Benjamin Scipione when making the telephone warrant application for search warrants 5541 and 55511 on 13 August 2011. Mr Fantakis again states that the documents will permit for a fruitful cross-examination as to the application of these warrants, on his view this being a ground as to why these charges were generated by Strike Force Flaggy on 6 June 2013. He states that the seeking of these documents is not a collateral attack on the warrants. I am not satisfied that there is a legitimate forensic purpose in seeking these documents and I am not satisfied that it is on the cards that these documents might assist the defence.

The documents sought relate to an application for a warrant, or warrants, in 2011 and these charges were instituted in 2013. Mr Fantakis seeks to assert that the fact that he made an application to seek access to the application for the warrants is connected to the reasons, he says for collateral purposes, as to why the intimidate police charges were instituted. He has not demonstrated this in the material before me, and in particular he has not demonstrated how documents relating to this application go to the credibility of the complainant in this matter. ...” (16/12/19; T13.42 - 17.18)

18. It was for those reasons that his Honour set aside the subpoena, finding that there was no legitimate forensic purpose for any of the documents sought by it and that in any event it was not “on the cards” that relevant documents of assistance to the plaintiff’s case would be produced in answer to the subpoena.

The appeal

19. The plaintiff relied upon two grounds of appeal.

Ground 1 – The plaintiff was denied procedural fairness in that his Honour failed to furnish adequate reasons and overlooked material evidence;

Ground 2 – The magistrate had erred in law to set aside the plaintiff’s subpoena in whole as the plaintiff did identify the legitimate forensic purpose for which access to the documents was sought and that it was on the cards that the documents sought would materially assist the defence case

20. The plaintiff’s right to appeal from the decision of his Honour is governed by s 53(3)(b) of the Crimes Appeal and Review Act. That section relevantly provides:

“53   Appeals requiring leave

...

(3)    Any person against whom ...

(b)    an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. ...”

21. As can be seen from its terms, the right of appeal is limited. A person against whom an interlocutory order has been made by the Local Court in summary proceedings can appeal to the Supreme Court against the order but only upon a ground that involves a question of law alone and only by leave of the Supreme Court. There was no issue in the proceedings before me that the decision of his Honour with respect to the subpoena was interlocutory in nature: Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064; Feeney v NSW Police [2017] NSWSC 190 at [1].

22. The avenue of appeal under s 53(3)(b) is narrowly confined to a “ground that involves a question of law alone”. There is a question of law alone if the question of law can be stated and considered separately from the facts to which it may be connected in a given case (Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88; Franklin v Commissioner of Police and Anor [2018] NSWSC 310 at [19].

23. Questions concerning any application of correct legal principle to the facts of a case are questions of mixed fact and law: NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25 at 539 [14]; PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286 at 35 [51].

24. Generally, leave to appeal in a case involving a matter of practice and procedure (such as subpoenas) should not readily be granted unless an appropriate case is made out of an error in principle which is apt to cause an irregularity or injustice: NAR v PPC1 at 539-540, [17]; PPC v Williams at 35, [52].

25. As was observed by Johnson J in Franklin v Commissioner of Police and Anor:

“24   In approaching the challenges to the decisions of the Magistrate, it is necessary to bear in mind not only the narrow nature of appellate review which is available to the Plaintiff, but also the fact that decisions were made concerning the subpoenas in the course of a procedural hearing. This involved quintessential matters of practice and procedure which were considered as the hearing progressed. As the transcripts of 5 April 2017 and 18 and 19 July 2017 make clear, other matters were interposed during the course of the hearing with respect to the Plaintiff’s subpoenas.

25   The Magistrate’s reasons were given ex tempore in a busy Local Court. They should not be picked over, with appropriate allowance to be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at 407-408 [15].”

26. In certain circumstances a failure to provide adequate reasons can constitute an error of law such as will come within the narrow ambit of s 53(3)(b). This was made clear by Garling J in Feeney v NSW Police [2017] NSWSC 190 at [27]-[28] and [31]:

“27   Accordingly, the Magistrate in my view has made a clear error in finding that a legitimate forensic purpose has not been demonstrated, but in making that error he has engaged in applying the correct legal test to the facts which were before him.

An Error of Law?

28   Whilst this is not the occasion to describe at length the difference between an error of fact and an error of law, I must confess that I am doubtful that an error made in the application of the correct legal test to the facts of which the Court has been informed constitutes an error of law. However, the defendant, who is the applicant in the case in this Court, appeared in person and it cannot be said that the difference between what constitutes an error of fact and an error of law is a matter which is easily or readily grasped, and certainly not by a layman.

...

31 On the authorities, a failure to give adequate reasons constitutes an error of law of a kind which seems to me to fall within the narrow statutory test posed by s 53(3)(b) of the Crimes (Appeal and Review) Act. The question of law identified is whether the Magistrate gave adequate reasons. In my view, and I say this with respect to the Local Court, which I acknowledge has a very heavy workload, and with respect to the particular Magistrate, who heard and disposed of this application with commendable efficiency, that nevertheless such reasons as were given do not explain adequately why there is no connection between the documents which were sought, the GPS records, and the issues which were to be ventilated at the hearing. As I have earlier demonstrated, there was a compelling connection between the two and if that was not to be upheld then the learned Magistrate needed to explain why that was not so. What he did was to give his conclusion, but in my view there was little if any reasoning in support of that conclusion. It follows that I am satisfied that there has been an error of law in the Local Court.”

27. The decision of his Honour in this case is not open to that kind of challenge. With great respect, his reasons for reaching the decision which he did were comprehensive, logical and compelling.

28. It is not without significance that in his written submissions and statement of grounds, the plaintiff did not address the issue of leave. As a result rather than making submissions as to errors of law alone, he addressed on questions of fact and mixed fact and law which cannot be the subject of an appeal under s 53(3)(b) of the Appeal and Review Act.

29. Accordingly, even though a failure to provide adequate reasons can give rise to an error of law, an error of that kind did not occur here.

Ground 1

30. The plaintiff submitted in support of the Grounds of Appeal dated 2 July 2020 that his Honour “failed to furnish adequate reasons and overlooked material evidence”. It should be noted that no affidavits were read during the hearing of the Commissioner’s application in the Local Court. There were a number of documents placed before the Court but their provenance was never formally proved, nor was their relevance clear. In relation to many of the documents relied upon by the plaintiff there was no rational or relevant connection between them and the case which the plaintiff was seeking to put forward. Even with documents which had some marginal relevance there was no explanation of how they would be of assistance to the plaintiff’s case.

31. Those documents, supplemented by the plaintiff’s submissions, involved unsupported allegations and speculation. In none of the material in front of his Honour was there a basis for establishing that the items sought in the subpoena were likely to materially assist the plaintiff’s case. It is trite to observe that whatever be the purpose advanced as supporting the subpoena, there must still be a reasonable or definite basis for believing that the material sought would assist the plaintiff.

32. Contrary to the plaintiff’s submissions in support of this ground, it is clear from the transcript that his Honour did in fact have regard to the plaintiff’s numerous allegations of police misconduct and which the plaintiff asserted would impact adversely on the credibility of the complainant.

33. In those circumstances, it was well open for his Honour to find:

“The charges for hearing in this Court relate to allegations of intimidation of a police officer. A Court must keep to the issues that are relevant in these proceedings. It is the case that the issues of the complainant’s credibility has been very clearly raised. He states that the documents sought will allow him to test the credibility and reliability of the complainant and as stated, I will need to consider that in relation to the hearing, and of course he will have the opportunity to cross-examine the complainant on relevant issues.” (16/12/19, T14.31)

34. As his Honour made clear, what had to be proved by the evidence in the murder matter was very different to what had to be proved to establish the intimidation offences. A general assertion that material, if produced, would assist in the cross-examination of the complainant, was not a sufficient basis. For a successful challenge to the complainant’s credibility, it was necessary to identify documents which had a rational and relevant connection to the intimidation charges. This was not done. The authorities establish that whatever purpose is advanced as supporting the subpoena, there must still be a reasonable or definite basis for believing that the material sought would assist the plaintiff. There will be no legitimate forensic purpose if all that a party is doing is trying to get hold of documents to see whether they may assist him in his case. A suspicion that the subpoenaed documents will or may assist the plaintiff is not sufficient. Concrete or definite grounds must support that belief.

35. It will therefore ordinarily be necessary for the subpoenaing party to identify the issue or issues in dispute at trial, what the subpoenaing party’s case will be on that issue or those issues, how the subpoenaed documents will assist the subpoenaing party in his case and what are the grounds for believing that the documents will in fact assist.

36. Despite the detailed nature of the judgment, it was still delivered ex tempore in a busy Local Court and appropriate allowance should be made for that fact. This would certainly explain the lack of reference in his Honour’s decision to every specific allegation raised by the plaintiff in support of his asserted legitimate forensic purpose. A failure to refer to every piece of evidence does not give rise to a reasonable inference that such evidence was “overlooked” particularly when his Honour stated more than once in the course of his judgment that he had taken into account all of the documents provided to him.

37. It follows that this ground of appeal has not been made out. The mere identity of a question of law, i.e. failure to provide adequate reasons, is not sufficient. The extent to which there has been no references to a particular document which seems to be the basis for this ground of appeal does not allow the plaintiff to obtain leave under the section. At best, if such an allegation were made out, i.e. that not all the evidence was taken into account, this would involve a mixed question of fact and law and so would still not come within the section.

Ground 2

38. This ground of appeal and the balance of the plaintiff’s written submissions provided on 2 July 2020 do not identify any error of law. The submissions in support of Ground 2 are more analogous to submissions that could and should have been made at first instance before his Honour. Plainly an application to the Supreme Court for leave to appeal from an interlocutory order made by a magistrate during criminal proceedings, does not give rise to a de novo hearing.

39. The substance of the plaintiff’s complaint under this ground is not based on an error of law but challenges the factual findings made by his Honour. The process provided for by s 53(3)(b) does not give rise to a merits review. This is particularly so in circumstances where his Honour made different factual findings to those urged upon him by the plaintiff.

40. His Honour summarised the plaintiff’s case in support of the subpoena and set about analysing the subpoena in the light of the plaintiff’s submissions and the test set out in Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65. In doing so, his Honour did have proper regard to the substantial amount of material provided to him by the plaintiff and there is no suggestion that his Honour did not in fact examine that material.

41. It follows that I would refuse leave to the plaintiff to appeal from the decision of his Honour. If I am wrong in that decision, and the plaintiff is entitled to leave to appeal, I would dismiss the appeal on the basis identified by his Honour, i.e. the lack of a legitimate forensic purpose and a failure of the evidence to establish that it was on the cards that evidence was available which would assist the plaintiff’s case.

42. Finally, if I am in error in those two conclusions, I would refuse leave to the plaintiff to rely on s 53(3)(b) of the Appeal and Review Act on discretionary grounds. I would do so on the basis that this case is not an appropriate one for leave to appeal to be granted. As was said in Franklin v Commissioner of Police and Anor at [22]:

“Generally, leave to appeal in a case involving a matter of practice and procedure (such as subpoenas) should not readily be granted unless an appropriate case is made out of error of principle which is apt to cause an irregularity or injustice.”

43. The history of the matter tells strongly against a discretionary grant of leave to appeal. The proceedings were commenced in 2013. They have now dragged on considerably beyond the hearing of the murder offence. They have been listed for hearing on many occasion and they have now been commenced before his Honour. They should be allowed to proceed to conclusion without the delay and distraction of practice and procedure matters such as the filing of a subpoena of this kind.

44. In view of the decision which I have arrived at, I propose to remove the stay preventing the continuation of the proceedings. It is now a matter for the Local Court to relist the intimidation matters for hearing so that they can proceed to completion.

45. The orders which I make are:

1. Leave to appeal against the judgment of his Honour Rodgers LCM is refused.

2. The stay of proceedings ordered on 17 July 2020 is removed.

**********

Annexure “A”

1. Production of all Crime Scene Warrants and Occupiers Notices, pursuant to s67 LEPRA 2002, executed by NSW Police upon premises (including vehicles) owned by Mr. Terry Fantakis during the course of Strike Force Flaggy between 13 August 2011 and 3 October 2013.

2. Production of all Property Seizure/exhibit receipts issued to Mr. Fantakis, pursuant to Clause 8 Law Enforcement (Powers & Responsibilities) Regulation 2005, in relation to all crime scene warrants executed by NSW Police during the course of investigation Strike Force Flaggy between 13 August 2011 and 3 October 2013.

3. Production of receipts issued to Mr. Terry Fantakis in relation to exhibits seized from Ford transit van BE32CB) on 13 August 2011, pursuant to NSW Police Handbook procedures.

4. Production of all receipts issued to Mr. Terry Fantakis for vehicles seized by NSW Police during the course of Strike Force Flaggy between 13 August 2011 and 3 October 2013, pursuant to NSW Police Handbook procedures.

5. Production of all Form 20 reports, including attached receipts provided to occupier, to Crime Scene Warrants executed by NSW Police Force Flaggy between 13 August 2011 and 3 October 2013, pursuant to s74 LEPRA 2002 and Clause 10 (l)(d) Law Enforcement (Powers & Responsibilities) Regulation 2005.

6. Production of all video recordings (filming) made by NSW Police during the execution of all Crime Scene Warrants executed during the course of investigation Strike Force Flaggy between 13 August 2011 and 3 October 2013, pursuant to NSW Police Force Standing Operating Procedures attached to Search Warrants.

7. Production of documents (including statements, notes COPS entries, Eagle I entries, reports, Crime Scene logs) made by NSW Police officers attached to Crime Scene Warrants executed on premises (including vehicles) during the course of investigation Strike Force Flaggy between 11 August 2011 and 3 October 2013. The NSW Police officers include:

a.   Applicants to Crime Scene Warrants

b.   Appointed case officers/commanding officers

c.   Appointed independent observers

d   Appointed exhibit officers

e.   Appointed video operators

1. Production of written orders made by a police officer authorizing the destruction of Exhibit X0000803009 (attached to DAL 2011003804) on the 15 December 2011, pursuant to s39PA (1) or s39 PB Drug Misuse and Trafficking Act 1985.

2. Production of all documents seeking orders for the destruction or disposal of exhibit X0000803009, documents provided to authorizing police officer prior to destruction of exhibit.

3. Production of written notice of the proposal to destroy or dispose of Exhibit X0000803009 to owner or occupier of premises at which the substance or article was seized, and any person charged with an offence to which the substance or article relates, pursuant to s39 PA(2)( c ) Drug Misuse and Trafficking Act 1985.

4. Production of written orders made by a police officer authorizing the destruction of Exhibit X0000801677 (attached to DAL 2011004320) pursuant to s39 PA (1) Drug Misuse and Trafficking Act 1985.

5. Production of written notice of proposal to destroy or dispose of Exhibit X0000801677 to owner or occupant of premises at which the substance or article was seized, and any person charged with an offence to which the substance or article relates, pursuant to s39 PA (2)( c ) Drug Misuse and Trafficking Act 1985.

6. Production of all documents seeking authority/orders to a police officer for the destruction of Exhibit X0000801677; documents provided to authorizing police officer who made orders to destroy X0000801677.

7. Production of all EFTMS - exhibit detail documents in relation to Exhibit X0000801677.

8. Production of statement made by Senior Constable Brett Pardy that was included in Mr. Woods brief service on the 10/01/12 in relation to H45273615.

9. Production of all Analyst Certificates made by analyst Susan Laird, pursuant to s39 PA Drug Misuse and Trafficking Act 1985, analyst certificates included in Mr. Woods brief services on the 10/01/12 in relation to H45273615.

1. Production of all documents relied upon by Detective Benjamin Scipione when making Telephone Warrant applications for search warrants 554/11 and 555/11 on the 13 August 2011.

I certify that this and the 20 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law.

Morna Lynch

Associate

Date: 22 July 2020

Decision last updated: 22 July 2020